[Cross-posted from OC Blog]

It’s been a couple of weeks, but I believe it’s important to respond to the OC Register’s October 1 editorial against Proposition 8.

There have been rumors the OC Register and the Los Angeles Times are discussing joint ventures, but after reading that editorial against Prop. 8, I have to wonder if those discussions include the editorial page.

Growing up, I derived cognitive nourishment from intellectually robust OC Register editorials defending freedom within the framework of the American Founding. But this editorial is more a mish-mish of wishy-washy LA Times liberalism and the stunted libertarian varietal that has more in common with nihilism than liberty.

Let’s take the editorial in sections:

"Proposition 8 on the November ballot at least has the virtue of being short and simple. It would amend the California constitution to say, "Only marriage between a man and a woman is valid or recognized in California." The story behind it, however, is not so simple.

In 2000, California voters approved those same words as an initiative statute. However, this past May, the California Supreme Court invalidated that statute on the grounds that it violated the state constitution’s guarantee of equal protection under the law. We thought that was a correct court decision. Prop. 8 would put the ban on recognizing same-sex marriages into the state constitution."

Now, the Register’s reasoning fascinates me, in a car-wreck sort of way. Four state Supreme Court justices use their power to re-define an ancient institution that forms the bedrock of human society — and the OC Register, libertarian scourge of government social engineering, thinks that is a good thing.

"Guarantees of individual rights are included in constitutions precisely to ensure that such rights cannot be taken away, by majority vote, legislative enactment or administrative decision.

What individual right, pray tell, had been taken away prior to the state Supreme Court decision? Was there a prior "right" to same-sex marriage?

No, there was not. The court cited the domestic partnership laws that had been passed during the last decade and decided those created second-class citizenship for gays — never mind that domestic partnerships aren’t limited to gay people, or that they were passed in order to give more legal rights to gay couples.

And it bears mentioning that Prop. 8 is not simply "a majority vote, legislative enactment or administrative decision." It is a proposed constitutional amendment, and in case the esteemed libertarian hands at the Reg have forgotten, we the people have the right to alter or abolish any form of government that is destructive of our liberties — and I think the judicial despotism of which the Reg approves qualifies. That’s why the Founders gave us the amendment process, so we could do the altering peacefully.

The state Supreme Court ruled that the right to marry is a fundamental individual right that must be provided equally to all people desiring to marry. Allowing same-sex couples to share in this right does not denigrate or degrade the marriages of the vast majority of people who enter into the traditional man-woman form of marriage. It strikes us as simple fairness."

And this strikes me as simple mindedness.

Four judges saying a thing no longer means what it has meant throughout history does not denigrate that thing? That’s like saying counterfeit money doesn’t denigrate or degrade the "traditional" money printed by U.S Mint.  Marriage has an intrinsic nature, and government steps in and decrees that it can be something it is not and never has been, then the institution of marriage is degraded. Government no longer simply simply gives marriage the legal preference it deserves as a bulwark of ordered liberty. Thanks to the state Supreme Court, California government own marriage, and anyone with enough votes can re-shape marriage as they see fit. Advocates of same-sex marriage cannot draw the line at polygamy, because they have already dismissed the arguments they would have to deploy in support of monogamy.

Proponents of Prop. 8 argue that it simply restores "what human history has understood it [marriage]to be." But marriage has not been a static institution. At one time wives were treated as chattel and had no property rights of their own. Interracial marriage was once banned in California, but that law was overturned as recently as 1948 on similar equal-protection grounds.

Come on. The Register ought to be smarter than transparent evasion. Is the writer unable to differentiate between form and essence? Cultural and legal standards of the respective marital duties and rights of husband and wife have changed over the centuries, but throughout it all marriage has been between a man annd a woman. Interracial marriage bans were examples of government defining marriage as something it is not. Interracial marriage bans and same-sex marriage are fruit of the same philosophical tree.

As our understanding of equal protection has evolved and expanded and as an increasing number of same-sex couples have expressed a desire to make lifelong commitments to one another – incidentally, promoting societal stability and reducing promiscuity – it has become clear that equal protection should be extended to same-sex couples.

The Register editorialist knows perfectly well there were no obstacles to gay couples making life-long commitments to each other. It wasn’t necessary for the court to re-define marriage.

It’s funny to see the Register claim same-sex marriage will promote "stability" and "reduce promiscuity" after it has pointed to divorce rates among religious Americans as a way of ridiculing their opposition to same-sex marriage. Perhaps the Register can someday make up its mind whether or not marriage promotes stability and reduces sleeping around.  

Hopefully, the Register realizes it has laid out criteria — promoting social stability and reducing promiscuity — whereby any "love relationship" can now qualify as marriage. It stands to reason, after all, that letting men have several wives or women several husbands would cut-down on extra-marital affairs.

The legal ramifications of the court’s ruling have been minor, since the Legislature had already extended most of the rights accruing to married couples to domestic partners. The institution of marriage has not crumbled. It will continue to be the most important voluntary social institution in our society.

A few shibboleths deserve to be explored. Legal recognition of same-sex marriage does not require those who have a moral objection to homosexuality or homosexual marriage to recognize or approve of it. It does not require ministers who have doctrinal or moral objections to perform or bless such marriages. And it does not require schools to teach that there is "no difference" between man-woman and same-sex marriages.

The state Supreme Court’s decision was based upon domestic partnership laws enacted beginning in the late 1990s. At the time, critics warned those laws would ultimately lead to same-sex marriage. Proponents dismissed such warnings as ridiculous and fell all over themselves with assurances that would never, ever happen.

Well, that’s reassuring. The libertarian thinkers at the OCR believe the invention of same-sex marriage by judicial fiat will be entirely self contained. That would certainly be a first for a social revolution.

As I pointed out earlier, the majority opinion cited the domestic partnership laws as creating a second-class citizenship for gay couples and used that to justify redefining marriage to include same-sex relationships.

Absent those domestic partnership laws, the four justices couldn’t have made their ruling (or at least, they would have had the conjure another pretext for their social engineering).

Maybe the OCR editorial mavens have forgotten that when domestic partnership laws were first being enacted in the late 1990s, opponents warned they were laying the groundwork for gay marriage. Advocates for those laws, on the other hand, were effusive with assurances that no way, now how would domestic partnership laws lead to gay marriage. That was neither their intent, those advocates said, nor their design.

Lo and behold, a mere decade later the state Supreme Court cites those very laws to impose same-sex marriage.

So forgive me if I put little stock in the OC Register’s easy assurances. Unlike the Register, I don’t believe you make something stronger by watering it down. One has to wonder how the Reg would respond to a re-definition of property rights to make them more "inclusive" as our "understanding" of property rights "has evolved and expanded"? Somehow, I don’t think they’d be so broad minded.

This entry was posted on Tuesday, October 14th, 2008 at 12:00 am and is filed under Blog Posts.