Sunday, November 23, 2008

Despite Proposition 8, It's Time for Marriage Equality!

In many respects, Election Day 2008 was a very happy day for me with the election of Barack Obama as President. And yet, the day was bitter sweet. I felt a deep sense of sadness over the results of California’s Proposition 8, which not only banned same sex marriage in the state but also rescinded the marriage rights of countless thousands of gay couples.

Sadly, marriage equality received a major setback nationwide as a result of this constitutional referendum. Hopefully, the California Supreme Court will nullify this measure and recognize that the majority acted in a tyrannical fashion, depriving citizens of their rights without due process of law.

To really understand this issue it is first important to recognize that marriage is not an "unchanging institution" as many Christian conservatives have erroneously alleged. In reality, marriage has been redefined many times before and undergone several important social and legal changes over the years.

For example, marriage used to be completely male-dominated and patriarchal. For centuries, women had no real legal rights in marriage, with property rights often denied them upon the death of their husband or in divorce proceedings. By the way, people often quoted from the Bible to defend such sexist arrangements and laws.

Speaking of divorce, that's another example of how marriage rights have changed over time. No-fault divorce laws are a recent legal innovation that has dramatically altered marriage as an institution; abused spouses (both female and male) are now able to exit their marriage much easier as a result.

Marriage has also changed in laws governing rape. Until the 1970s, most states did not have any laws protecting women (or men for that matter) from rape by their spouses. All of these changes in marriage went up against the conservative status quo, but nonetheless prevailed.

Probably the most important legal precedent in this regard is how black slaves were denied legal recognition of their marriages until after emancipation. But even after Reconstruction, tyrannical majorities often thwarted marriage rights based on racist bigotry. In fact, at least sixteen states had anti-miscegenation laws that prevented people from marrying someone of a different race.

It was not until 1967, in the case of Loving v. Virginia, that the US Supreme Court struck down such laws banning interracial marriage. The Court used the equal protection clause in support of their decision. Public opinion polls taken at the time found that upwards of 90 percent of the general public (not just in the South) disagreed with the Supreme Court and supported bans on interracial marriage. Many so-called "Christians" - especially in the South - quoted from the Bible to defend their stance in opposition to mixed-race marriage. Fortunately, the Supreme Court did not simply affirm what was popular and reputedly "Christian.” Instead the Court took a bold stand to redefine marriage rights to include a broader number of people.

Our current debate is the latest battle in the progressive evolution of marriage as a legal institution. It is not really an issue of gay rights; rather, it is an issue of human rights.

It is important to note that there are over one thousand legal rights and benefits accorded to married couples in the U.S. (e.g., inheritance, joint income tax returns, disability benefits, worker's compensation, spousal or child support, insurance benefits, medical leave, bereavement leave, child custody, Social Security and other retirement benefits, power of attorney, hospital visitation, divorce, etc.)

For this reason, it is high time to grant equal marriage rights to gay and lesbian couples nationwide. This is an issue that relates directly to the 14th Amendment's equal protection clause. Though marriage has religious connotations, it is primarily a legal institution that licenses and codifies relationships and the rights that go with them. To deny same-sex couples equal marital rights is contrary to basic liberty. That's what America is really supposed to be about: liberty for all; rather than some mindless tyrannical conformity based on homophobic bigotry.

For a great argument on this issue, check out Keith Olbermann in the following video:

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