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Leefstyl | Lifestyle > Gay > Artikels | Features

Gay Californians should be able to marry – everyone has the right to be miserable


Cobus Fourie - 2010-01-15

The sardonic title aside, herewith a rough dissection of the issues pursuant to the very contentious federal court case currently underway in San Francisco, CA.

The United States Ninth Circuit Court is currently in session with both sides of the aisle fiercely debating marriage equality in Perry v Schwarzenegger. The federal trial is to determine whether Proposition 8 was in contravention of the United States Constitution. The scope is further expanded to ask the question whether individual states have the right to ban same-sex marriage under the Federal Constitution.

For the uninitiated: Proposition 8 was a ballot measure brought about by a plethora of religious organisations (a huge Mormon influence) and other social conservatives. During the 2008 US presidential elections Proposition 8 was passed with 52 percent to 48 percent, much to the dismay of Californians, Americans and the entire world. Effectively Proposition 8 amended the Californian constitution to declare marriage a union between one woman and one man to the exclusion of all others. Sorry Mormons, no chauvinist polygamy here ...

The foundation of the modern American collective psyche was mapped out by the Declaration of Independence of 4 July 1776 drafted by Thomas Jefferson. This document is of great significance to Americans and underpins the core values on which independent America was formed. The salient quote applicable in this instance:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Note that Jefferson unambiguously mentions that there are certain unalienable Rights, such as Life, Liberty and the pursuit of Happiness. Is it not the unalienable right of same-sex partners to be treated equally in the eyes of the law? Is it not their pursuit of happiness that is immensely cramped here as the underdogs and underclass of America are denied happiness central to enjoying their rights to liberty without fear of prejudice?

Thomas Jefferson also engraved a very central element in the ethos of the American State: the separation between church and state. In a letter to the Danbury Baptist Association in 1802 to answer a letter from them written in October 1801 Jefferson wrote:

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

It is thus uncanny that in our day and age the religious convictions of the slight majority are able to trump individual liberties and deny citizens very basic rights. Aforementioned letter was written centuries ago, yet it seems Americans have completely forgotten their basic founding principles and documents.

According to John C Eastman of the Chapman University School of Law in Orange County, California, the trial of Perry v Schwarzenegger is weighted slightly in favour of the LGBT community:

The trial to determine the constitutionality of California's same-sex marriage ban, Proposition 8, is being held in San Francisco, one of the most pro-gay marriage venues in the country. This is a decided home-court advantage for those challenging the law and, by implication, the nation's marriage laws.

The constitutionality of Proposition 8 does not hinge on the views of the sponsors of Prop 8 about marriage and sexuality, nor does it depend on the TV commercials and other communications put forth by the campaign in favor of the measure. Yet Walker has not only ruled that these issues are relevant, so are the private thoughts of backers never communicated to voters.

Eastman further supplies some information on the arguments of the first day of the trial:

Perry co-counsel David Boies has said traditional marriage is nothing but "the residue of centuries of figurative and literal gay bashing". The plaintiffs will argue that gays and lesbians are a politically powerless class of people who are entitled to the highest degree of legal scrutiny of a law that applies especially to them. In this regard, they say, Prop 8 should be viewed by the same legal standards that are used to evaluate claims of racial discrimination. They'll argue that homosexuality is an immutable characteristic. And they will argue that Prop 8 was passed because of "improper" religious views. They say that there is no rational basis for Proposition 8 and that it could have been adopted only because of voter "animus" toward gays and lesbians.

In my opinion there is no difference in the premise and justification of discrimination and inequality that the LGBT community suffers than the justifications of discrimination and inequality people suffered in the form of racism and slavery. The same holds true for the oppression of women, who only very recently acquired the right to vote.

Many of my counterparts all over the world have said this and I stand by it: one day we will look back at where we are now in shame and disgrace as a period akin to the Dark Ages.