Regarding the California Same-Sex Marriage Decision.
With many thanks to Ebon, frequent commenter to the Gaytheist Agenda, who provided this wonderful cheat sheet.
When the Cali ruling was handed down, I created a quick cheat-sheet for dealing with those who would argue against it. Since I noticed at least one person using one of the arguments I dealt with, I thought you might like a copy of it:
“The judges overturned the will of the people” ~ It is not the job of the judicial branch to uphold the wishes of the majority. There is a very good reason why very few states and virtually no civilised nations elect judges and that is because it would open them to the same pressures as politicians face. Judges are deliberately
insulated from the political process to ensure that they don’t have to follow “the will of the people”. The judges were asked to rule on whether the state’s ban on same-sex marriage conflicted with the state constitution’s ban on discrimination on grounds of sexual orientation. They decided it did. making that decision was their only responsibility. Not enforcing the will of the people, not following the prevailing political winds, simply stating the law as they understood it. If the judiciary’s only function was to rubber-stamp “the will of the people”, there would be little point having them. The judicial branch is independent to guard against the tyranny of the majority, not to enable it.“Activist judges / legislating from the bench” ~ The phrase “activist judges” has only ever meant “a decision I disagree with”. Of the seven judges who made this decision, six were appointed by Republicans and California currently has a Republican governor, not the kind of people normally slandered with cries of judicial activism. As anyone who has ever studied law knows, it is utterly impossible for a judge to avoid legislating from the bench. In any case at all (except Bush V. Gore), the decision establishes a legal precedent. By the principle of stare decisis (roughly “the court stands on it’s previous decisions”), that precedent then has the force of law to all lower courts unless and until it is overturned, thus establishing law and thus, legislating from the bench. That is how the legal process is supposed to work. It is, in a very real sense, the essence of what judges do. Further, the cry of activism can only ever have any weight (beyond the previously mentioned “decision I dislike”) if a decision is made without firm legal reasoning. In this case, the legal reasoning was entirely sound. The wording of both the State Constitution and the marriage act were exceedingly clear and the court also drew on the decision made in Loving which established the right to marriage as a fundamental right. That is a well-reasoned, well-thought out judicial opinion.
I’ve noticed that it’s only the RWers who bemoan Activist Judges/Legislating from the Bench. I’ve never heard that come from anybody on the Left. You know the one time I didn’t hear it? Bush vs. Gore. Nobody on the Right was whining about Activist Judges then.
“Now people will be able to marry children/dogs/box turtles” ~ First off, there is no evidence whatsoever that gay people abuse children any more frequently than hetero people and a certain amount of evidence suggesting exactly the opposite. Secondly and more importantly, marriage is (shorn of the religious connotations) a state-sanctioned contract. Children cannot consent to a contract, nor to sexual intercourse so when one is asked “where do we draw the line?”, the appropriate answer would probably be “at people who are able to give consent”. While we’re on the subject, animals are also judged unable to give consent so leave that one at home too.
Rational people like you and I know that, as do people who have basic knowledge of logic. But the RW likes to prey upon those who don’t and use the time-honored slippery slope fallacy. Of course it’s very effective on its target audience.
“They’re free to marry someone of the opposite sex, like anyone else so same-sex marriage is a special right” ~ There is a reason the phrase “one size fits all” appears in no known constitution or bill of laws anywhere. If you wish to apply that argument, one can as easily shut down every church except the Satanists, not our fault if you choose to be something different or we could enforce vegetarianism, not our fault if you like a steak. Quite apart from the absurdity of the argument, it becomes rather more sinister when you flip it around: If the government can say I only have the right to marry a woman, why can it not say I only have the right to marry some women? Or this woman? Or this aardvark? A reasonable argument can be made for limiting marriage to two people out of sheer practicality and the need to maintain a tax base but beyond that, allowing the state to decide which people can marry sets a dangerous precedent.
They’re always going on about these “special rights” that we want. Funny how we ask for exactly what they have, yet we’re asking for “special rights”. If they aren’t special for them, how are they suddenly special when we want them? It’s like when they have protection from hate crimes based on their religion, but when we ask for protection based on our sexual orientation or gender identity suddenly they start claiming that’s a “special right” or that it will discriminate against them. What the…?
“Marriage has always been between a man and a woman” ~ So was child labour, so was miscegenation, so was slavery. Everything is “always” until we decide it’s something else. The satirist Terry Pratchett once described tradition as “the name we give to something daft we’ve been doing a long time”. His point was not that tradition is inherently a bad thing but that holding a tradition simply because it had always been a tradition was absurd. Until quite (shamefully) recently, it had “always” been legal to force sex upon one’s wife. And then the world grew up and realised that was foul and changed it. Humanity is not static, what was done does not have to continue to be done. If humanity had stuck with what it had “always” done, we would be eating our meat raw and living in a tree. Respect the last by all means but don’t be a slave to it and, when necessary, be willing to learn from it’s mistakes.
Very good point. But they’re wrong about marriage having always been “between a man and a woman”, and they’re hoping everybody is as ignorant as they are. Historically marriage has included polygamy, polyandry and even–yes–same sex marriage. So it definitely has not always been “between a man and a woman”.
“God says it’s immoral” ~ Got God’s fax number? Willing to share it? Then it’s just your opinion. You may have an elderly book that says your god feels this way but I have a book which says otherwise and since neither of us can prove our case or disprove the others, let’s just leave everyone’s gods out of the equation. Or, to quote Sir Francis Walsingham: “Is your god such a worldly god that he must play at politics?”.
God says a lot of things are immoral, sinful, abominations, etc. Of course any time they’re brought up they have excuses as to why those things are no longer applicable, only apply to Jews, are taken out of context, were eradicated by Jesus (though if you try to use that they say he fulfilled the law rather than eradicating it) or whatever. The excuses are endless. But of course the verses that they use against gay people are etched in stone because “God’s word is forever”. I swear their brains are like pretzels because the logic they use is so incredibly convoluted it couldn’t be any other way.
“It’s unnatural” ~ So is wearing clothes, driving cars, modern medicine, corporations and American Idol. The life of man in a state of nature is nasty, brutish and short. The entirety of human existence has been a flight away from nature, a drive to modify nature to our own ends. That is what has made us the dominant species on the planet and, because we never know when to stop, is killing the planet. Homosexuality has been observed in at least a hundred species (last time I checked, it may be even more now). If animals in the state of nature do it, it is natural by definition.
Homosexual behavior has been observed in about 1,500 animal species to date. It’s definitely a natural occurrence.
“It will encourage homosexuality” ~ You can’t encourage an inborn trait. All the
evidence, while not entirely conclusive yet, indicates that homosexuality is almost certainly innate. More to the point, what do you think is going to happen? Are otherwise hetero kids going to notice two guys getting married and think “I’m cured, I want the boys!”. If gay people have been being gay and living as gay and coming out as gay despite the ban on same-sex marriage and despite the phenomenal pressures to be straight and conform and despite the (decreasing but still very prevalent)threat of physical violence, we can safely assume that suppressing gay people hasn’t worked.
Just like their hateful “ex-gay” reparative therapy doesn’t work. It doesn’t stop them from hawking it though.
“It will destroy the sanctity of marriage” ~ OK, first off, let’s talk about that sanctity. Last time I checked, the divorce rate was around fifty percent and around eighty percent of married people (men and women) will cheat at some point in their married life so marriage doesn’t currently seem to be very sanctified anyway. Secondly, do you honestly believe that gay people getting married will have any effect on hetero marriages (beyond the minuscule effect on tax revenues)? Straight people are not going to stop getting married purely because marriage is no longer exclusive to them, the human mind doesn’t work that way.
If Britney Spears’ 55 hour marriage didn’t destroy the “sanctity of marriage” then nothing will.
Ebon, I can’t thank you enough for this wonderful resource. I’m sure it will come in handy time and time again.
