Tuesday, October 21, 2008

Proposition 8

It seems that this proposition is generating a lot of chatter out in the world. I'm impressed by the rational and thoughtful arguments that have been made for both sides of the argument. Members of my family have been respectfullly debating this Proposition for the past week or so and I have been delighted to hear several viewpoints, thoughts and insights that they have shared. As such, I would like to submit a little history lesson (which I took from several internet sources, including wikipedia) coupled (no pun intended. I promise.) with my thoughts about this topic. I do not write this with the intent to offend or instigate. I write this with the intent of providing a historical context and my thoughts on the issue.
On May 15, 2008 the California Supreme Court, by a vote of 4–3, ruled that the statute enacted by Proposition 22 and other statutes that limit marriage to a relationship between a man and a woman violated the equal protection clause of the California Constitution. It also held that individuals of the same sex have the right to marry under the California Constitution.
The nonpartisan League of Women Voters of California opposes Proposition 8 because "no person or group should suffer legal, economic or administrative discrimination."

Let’s examine some of the statements that have been made regarding Proposition 8 and the Facts associated with them:
Fiction: Prop 8 doesn’t discriminate against gays.
Fact: Prop 8 is simple: it eliminates the rights for same-sex couples to marry. Prop 8 would deny equal protections and write discrimination against one group of people—lesbian and gay people—into our state constitution.
Fiction: Teaching children about same-sex marriage will happen here unless we pass Prop 8.
Fact: Not one word in Prop 8 mentions education, and no child can be forced, against the will of their parents, to be taught anything about health and family issues at school. California law prohibits it. California gives parents an absolute right to remove their kids and opt-out of teaching on health and family instruction they don’t agree with.
Fiction: Churches could lose their tax-exemption status.
Fact: Nothing in Prop 8 would force churches to do anything. In fact, the court decision regarding marriage specifically says “no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”
Fiction: Four Activist Judges in San Francisco…
Fact: Prop 8 is not about courts and judges, it’s about eliminating a fundamental right. Judges didn’t grant the right, the constitution guarantees the right. This campaign is about whether Californians, right now, in 2008 are willing to amend the constitution for the sole purpose of eliminating a fundamental right for one group of citizens.
Fiction: People can be sued over personal beliefs.
Fact: California’s laws already prohibit discrimination against anyone based on race, religion, gender, or sexual orientation. This has nothing to do with marriage.
Fiction: Unless Prop 8 passes, CA parents won’t have the right to object to what their children are taught in school.
Fact: California law clearly gives parents and guardians broad authority to remove their children from any health instruction if it conflicts with their religious beliefs or moral convictions.

The nations of Israel, Aruba, and the Netherlands Antilles, as well as the U.S. States of New Mexico, New York and Rhode Island, recognize same-sex marriages lawfully entered into in other countries, while not (yet) permitting them to be performed locally.
The Supreme Court of Connecticut has also ruled that restriction of marriage to heterosexuals is illegal under the state constitution, and gay marriages will begin in Connecticut at a date to be determined.
From 1850 to 1977, California's marriage statutes used gender-neutral language, without reference to "man" or "woman," in providing that marriage is a personal relation arising out of a civil contract to which the consent of the parties capable of making the contract is necessary.
In 1948, the California Supreme Court became the first state court in the country to strike down a law prohibiting interracial marriage. It was the only state supreme court to do so before the United States Supreme Court invalidated all those laws in 1967. The California Supreme Court held that "marriage is ... something more than a civil contract subject to regulation by the state; it is a fundamental right of free men ... Legislation infringing such rights must be based upon more than prejudice and must be free from oppressive discrimination to comply with the constitutional requirements of due process and equal protection of the laws" (Perez v. Sharp (1948) 32 Cal.2d 711, 714-715). The California Supreme Court explained that "the right to marry is the right to join in marriage with the person of one's choice".

Here is an interesting press release from tonight:
LDS Lawyer's Commentary Mischaracterized in 'No on 8' Press Release
Last update: 7:02 p.m. EDT Oct. 21, 2008

ORANGE COUNTY, Calif., Oct 21, 2008 /PRNewswire via COMTEX/ -- "A press release dated October 19 from a public relations firm representing 'No on 8' is inaccurate and misleading," says Morris A. Thurston, an LDS lawyer who was erroneously cited as having "debunked" new California Prop 8 ads. “…Prop 8 will not require teachers to promote gay marriage or to make any value judgment regarding the morality of same-sex marriage compared to traditional marriage…More than a month ago, Thurston wrote a commentary on a document titled "Six Consequences ... if Prop 8 Fails." That document, unsigned and anonymous, had not been approved by the LDS Church, although it was being circulated by some local church members. "It contained certain misstatements about the consequences of Prop 8's failure," Thurston said, "so I wrote my commentary to correct these errors…The primary reason I wrote my commentary was to help keep the campaign honest. I am an active member of the LDS Church and a strong supporter of equal rights for gays and lesbians.”

Looking back through time, we find several types of marriages that were once considered acceptable and have since been found to be oppressive or undesirable, such as child brides or arranged marriages. Some cultures still believe in these practices, but our current culture eschews them.
In some countries today, marriages are separate between church and state and couples are required to have 2 separate ceremonies.
In the Roman Empire they had 2 types of marriage: one where the woman lost her rights of inheritance and one called a free marriage, where she did not. Interestingly, this is the same culture where the first recorded use of same sex marriages.
Throughout the middle ages women had an age requirement to marry. In the 1200s it was 24 years of age, in the 1500s it was 20.
It wasn’t until 1545 when marriage was officially defined as a union between a man and a woman. This was done by Roman Catholics as an Anti-Reformation act, because until then, most marriages were not consecrated or recorded by church officials. After that, Catholics had their marriages performed in ceremonies by priests, and Protestants registered their marriages with the state instead of the church.
In England they had several “Fleet Marriages” or clandestine marriages where the 2 parties simply had to express to each other their consent to marry and they were considered married. They might do this because they had no parental consent or they were already married to someone else. After the Marriage Act of 1753 passed, you had to “publish” your intent to marry or obtain a license. However, in the Americas, Fleet Marriages continued. The Marriage Act of 1753 also did not apply to Britain's overseas colonies of the time, so common law marriages continued to be recognized in the future United States and Canada. In the United States, new common law marriages arising in the state are still recognized in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia, and in several Canadian provinces. Almost all U.S. states recognize common law marriages validly entered into at a time and place where common law marriage was recognized.
While a number of U.S. states recognize either same sex marriage, or domestic partnerships with the same legal incidents as marriage, no U.S. state currently recognizes same sex common law marriages.
It wasn’t until 1907 that the Deceased Wife’s Sister’s Marriage Act was repealed in Great Britain. Up until then, it was illegal to marry your dead wife’s sister.
A marriage, by definition, bestows rights and obligations on the married parties, and sometimes on relatives as well, being the sole mechanism for the creation of affinal ties (in-laws). These may include:
giving a spouse or his/her family control over a spouse’s labor & property.
giving a spouse responsibility for a spouse’s debts.
giving a spouse visitation rights when his/her spouse is incarcerated or hospitalized.
giving a spouse control over his/her spouse’s affairs when the spouse is incapacitated.
establishing the second legal guardian of a parent’s child.
establishing a joint fund of property for the benefit of children.
establishing a relationship between the families of the spouses.
Marriage is not a prerequisite for cohabitation. In some cases couples living together do not wish to be recognized as married, such as when pension or alimony rights are adversely affected, or because of taxation consideration, or because of immigration issues, and for many other reasons.
In some cases cohabitation may constitute a common-law marriage, and in some countries the laws recognize cohabitation in preference to the formality of marriage for taxation and social security benefits.
Cohabitation alone does not create a common-law marriage; the couple must hold themselves out to the world as husband and wife; and
There must be mutual consent of the parties to the relationship constituting a marriage
Both parties must be of legal age to enter into a marriage or have parental consent to marry
In some jurisdictions, a couple must have cohabited and held themselves out to the world as husband and wife for a minimum length of time for the marriage to be recognized as valid. Again, while a number of U.S. states recognize either same sex marriage, or domestic partnerships with the same legal incidents as marriage, no U.S. state currently recognizes same sex common law marriages.
There are other parts of marriage that certain cultures place a different emphasis on that we do not. Some of these include:
In some cultures, marriage imposes an obligation on women to bear children. In northern Ghana, for example, payment of bridewealth signifies a woman's requirement to bear children, and women using birth control face substantial threats of physical abuse and reprisals.
People's Republic of China shifted from allowing polygamy to supporting only monogamy in the Marriage Act of 1953 after the Communist revolution.
Many societies have also adopted other restrictions on whom one can marry, such as prohibitions of marrying persons with the same surname, or persons with the same sacred animal. Anthropologists refer to these sorts of restrictions as exogamy. One example is South Korea's general taboo against a man marrying a woman with the same family name.
The financial aspects of marriage vary between cultures and have changed over time:
In many cultures the family of the bride was historically expected to provide a dowry to the husband. A dowry was not an unconditional gift, but was usually a part of a wider marriage settlement. For example, if the groom had other children, they could not inherit the dowry, which had to go to the bride's children. In the event of her childlessness, the dowry had to be returned to her family, but sometimes not until the groom's death or remarriage. Often the bride was entitled to inherit at least as much as her dowry from her husband's estate. In some cultures, dowries continue to be required today, while some countries impose restrictions on the payment of dowry.
Bride price and dower (All I can think of here is the movie, Johnny Lingo)
In other cultures, the groom or his family were expected to pay a bride price to the bride's family for the right to marry the daughter, or dower, which was payable to the bride. If the groom or his family did not have the bride price to offer to the bride's family, sometimes a bride service may be accepted in its place. This required the groom to work for the bride's family for a set period of time.
Morning gifts, which might also be arranged by the bride's father rather than the bride, are given to the bride herself; the name derives from the Germanic tribal custom of giving them the morning after the wedding night. She might have control of this morning gift during the lifetime of her husband, but is entitled to it when widowed. If the amount of her inheritance is settled by law rather than agreement, it may be called dower. Depending on legal systems and the exact arrangement, she may not be entitled to dispose of it after her death, and may lose the property if she remarries. Morning gifts were preserved for many centuries in morganatic marriage, a union where the wife's inferior social status was held to prohibit her children from inheriting a noble's titles or estates. In this case, the morning gift would support the wife and children.

Societies have also at times required marriage from within a certain group. Anthropologists refer to these restrictions as endogamy. An example of such restrictions would be a requirement to marry someone from the same tribe. Racist laws adopted by some societies in the past—such as Nazi-era Germany, apartheid-era South Africa and most of the United States in the nineteenth and the first half of the 20th century—which prohibited marriage between persons of different races could also be considered examples of endogamy. In the U.S., many laws banning interracial marriage, which were state laws, were gradually repealed between 1948 and 1967. The U.S. Supreme Court declared all such laws unconstitutional in the case of Loving v. Virginia in 1967.

In spite of this, several religions continued to condemn, or refuse to perform interracial marriages for many more years.

Remarkably, Proposition 8 will amend the State Constitution by a simple majority vote. But before you go all "will of the people" on me, please reflect that by a simple majority vote, African Americans would have remained "separate but equal" in the Jim Crow South. The point of the Constitution is to prevent abuse of the minority by the tyranny of the majority. That's why the courts exist.

After a LONG history and cultural lesson, for which I apologize, my point is this:
There have been times when certain ideas of marriage have been appalling to people, but that have withstood time and have come to be considered acceptable. If I were in the pre-civil rights south, I would have wanted to be someone who would have stood up for interracial marriage rights. I would hope that I would have always stood for property rights equality. Indeed, history has repeated several scenarios that people have been persecuted for their beliefs and rights which have since been found to be considered humane and unalienable. I am reminded of the accounts I have read about women who wanted the right to vote. I am reminded of my forefather who practiced polygamy with the Mormon Church in the late 1800s and was denied the chance to attend his child’s funeral. I would hope that at any point in history, we would approach our fellow humans with respect and love and not purposely seek to take away their rights and liberties. People have a right to worship how they deem appropriate. I respectfully submit that people should have the right to marry the right person, in the right place at the right time as they deem right for themselves. And that might include marrying someone of the same gender.

1 comment:

Sarah said...

Thanks for that,Esther. It's so important to understand the REAL history and not the half-truths politicians relay to us.