Saturday, August 7, 2010

Proposition 8 case and equal protection of the law

This extends a comment I made here, at a post by a Catholic philosopher on the decision by Judge Walker overturning Proposition 8, the Californian referendum to ban same-sex marriage. (A useful précis of Walker J’s decision here.) The post defended natural law claims (including that same sex marriage was not ‘marriage’) and attacked notions of liberal neutrality.

The conflict over extending equal protection of the laws to the same-sex attracted and oriented has all happened before, in various ways. The notion that the law should be predicated on the notion of One True Sexuality is about as sensible as it should be predicated on One True Religion. It is striking how many of accusations against GLBTI folk mirror previous accusations against Jews (they are against God, corrupt any institution they join, prey on children, are engaged in a conspiracy against righteousness, adhere to their path out of moral perversity, etc) and how many defences for denying them equal protection of the law are also much the same claims (it is against tradition, undermines the Christian basis of society, etc).

A massive study (pdf) of US sexual behaviour by the CDC found that about 90% of those surveyed identified as heterosexual. Which means 10% did not. The reasons they did not varied, but the human reality is that humans are diverse in sexuality and gender identity. If one says "there is a proper form of the human—heterosexual—and improper forms—everything else" then that has legal consequences. But if one says "there are no improper forms of the human, people are simply citizens" that has consequences too. And, yes, of course denying there are no improper forms of the human is not neutral to the claim that there are but this is not exactly striking news. The neutrality that equality before the law is based on is not neutrality between claims but a provisional neutrality between persons (in the absence of actions against the life, property, etc of others).

We are past denying equal-protection claims because people are the "wrong" religion, race, gender and are now moving on struggling over denying claims because people are the "wrong" sexuality. Everyone who defended previous denials of equality always had "a theory", typically theories with metaphysical groundings. But the theories always failed in the end against the "just folks" claim. Which is where Walker J's judgment ultimately comes down on. The same-sex attracted/oriented are "just folks" too and entitled to equal protection of the law.

Like many judges who have been upholding gay rights, Walker is a Republican appointee. Which suggests that law has its own dynamic. As, indeed it does: the widening dynamic of people being “just folks”. (That the Californian Governor and Attorney-General have both filed to have Walker J rescind his delay in the effect of the judgment so that the State of California can return to issuing same-sex marriage licenses is its own straw in the wind.)

ADDENDA The muted Republican response in an election year is another straw in the wind.


  1. Lorenzo

    I don't care one way or the other about gay marriage. But I do know quite a few gay people - especially lesbians who fiercely oppose it. Why?

    1. They argue that it normalizes heterosexuality even more, where what we should be working for is either the state getting out of the marriage business, or marriage withering away completely.

    2. Once The Marriage Act is changed not to exclude same-sex marriages, then ALL same-sex couples - married or not - will come under the same Family Law Act Court jurisdiction as straights. These gays are horrified at the State interfering in their relationships, especially when they separate.

  2. As to (1) the notion that the queers can lead a transformation of sexual relations is hubris. Mum, Dad, the kids and a house is a perfectly reasonable ambition and does not need to be "transformed". But I touched on this in a previous post.

    As to (2) there is a difference between being outside the law and being state-controlled. I grant you that the state uses laws to intervene but being outside the law also means having no legal standing. That can have some seriously negative effects.