Perry v. Schwarzenegger: The New Front on Civil Rights

It’s been a good day for civil rights. This afternoon Federal Judge Vaughn Walker ruled in the case of Perry v. Schwarzenegger that California’s ban on gay marriage violates the 14th Amendment of the U.S. Constitution. Judge Walker (who was appointed by President George H.W. Bush) ruled that Proposition 8, passed in 2008 by 52% of California voters, is unconstitutional.

This has been an incredibly polarizing issue for a long time, and the fight is far from over, but the progression is obvious. The supporters of Prop 8 have already promised to appeal, and there is a stay in place to prevent more gay marriages until the appeals process is over. I have to confess that I’m praying that no higher court chooses to take this case, but it’s probably not going to be that easy.

Already Prop 8’s supporters are arguing that since 52% of California’s voters supported it, one judge who “subverts the will of the people” is wrong. The problem with that argument is that is sounds so good. It is not, alas, Constitutional. The Framers of the Constitution put in several checks to make sure that the U.S. would be a democracy that is not ruled simply by the will of the majority. If they had wanted to do this, there would be no need for the Senate, the Supreme Court, or the Presidency. If the current majority of the people of the U.S. want something, then a simple vote of the House of Representatives should be enough to achieve that. Checks and Balances were written into the Constitution to make sure that we would not be hostage to the tyranny of the majority.

My best argument for this is the history of marriage. Proponents of Prop 8 claim that marriage has always been seen as a union of one man and one woman. That’s incredibly not true. Even in the Bible marriage is often seen as between one man and as many women as he can afford. King Solomon (who was given the gift of wisdom) is said in 1 Kings to have 700 wives and 300 concubines. Nobody is arguing for that now, but it lends credibility to the belief that “one man and one woman” isn’t as old as Adam and Eve.

Even in the last century marriage wasn’t seen as the union of one man and one woman. Until 1967, at least in the Commonwealth of Virginia, marriage was defined as the union of one man and one woman of the same race. In that year the Supreme Court ruled against Virginia in the case of Loving v. Virginia deciding that prohibitions on interracial marriages were unconstitutional.

So what about the “will of the majority?” Well, it’s a funny thing. You can read this at the Gallup organization but at this point 76% of Americans support marriages between people of different races. That sounds pretty progressive to me. But wait… it hasn’t always been that way. In 1958 (the year Richard Loving married Mildred Jeter) only 4% of Americans supported their marriage. By the time the Supreme Court decided they could be married, their support increased to 20%. The majority of Americans wouldn’t approve of their marriage until after 1983. I’ll argue that public opinion didn’t swing their way until more and more people met, interacted with, and befriended interracial couples and recognized that their fears were unfounded.

My prediction, hope, and prayer is that as more and more of us meet gay married couples, homophobia is going to go the way of racial intolerance. In the meantime, I applaud Judge Vaughn Walker.

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