A lot of people wonder if it is not premature to bring a gay marriage case to the Supreme Court. The Court is more conservative than it has been in many years. It is also loaded with Roman Catholics, who are reputedly more conservative on social issues than Protestants or Jews. For those who haven't been keeping track, Chief Justice Roberts and Associate Justices Alito, Kennedy, Scalia, Sotomayor, and Thomas are all Roman Catholics. The possibility that the Court would rule against the plaintiffs in Perry v Schwarzenegger, with lasting effect, is both real and worrisome.
On the other hand, it could be fifty years before we have a Supreme Court more liberal than the one we have now. Maybe now is the best time for a roll of the dice.
There is also a point to be made about gay rights, as opposed to an individual's right to marry. I'm certainly no advocate of collective rights, group rights, communal rights. Communities have no rights because they have no real existence. Only individuals can have rights. So no one should have a claim to some right because he is gay; and by the same token, no one should be deprived of any right to which he has a claim solely because he is gay.
I think this is the tack that Boies and Olson are taking in Perry v Schwarzenegger, the line that everyone has a right to marry. That the right to marry is not conditioned upon an intention to reproduce. That the right to marry is not conditioned upon adherence to some particular code of conduct. That the right to marry is not conditioned upon the approval of some religious group. Rather, the government should recognize the formation of unions between individuals, because individuals have the right to form such associations as they wish for any lawful purpose.
3 comments:
Glenn:
"(T)he government should recognize the formation of unions between individuals, because individuals have the right to form such associations as they wish for any lawful purpose."
That's the crux of the argument alright. An opposing argument is that there's no particularly good reason for the government to provide special, protected, benefits-conferring legal status on various and sundry 'unions' of individuals. Why would the government do that? We do it - and have done it for millennia - for marriages (husband/wife pairs) because we recognize the the unique social and biological role of the male/female pair in the human species. I don't oppose 'gay marriage' because I oppose the rights of homosexuals. They currently have the same rights as the rest of us: any gay man can marry any woman he wants to. The problem for him is that being gay, this right is of no interest to him; he doesn't want to exercise his right to marry a woman.
Just because he eschews his right to join a male/female pair - a marriage - does not mean society has an obligation to invent some new 'right' that he would like better. 'Gay marriage' doesn't extend the same rights to gays that everybody else has; 'gay marriage' invents a special right expressly for gays.
Regards,
AZ
Your argument reminds me of the famous comment of Victor Hugo: "The law in its majesty prohibits the rich and the poor alike from sleeping under bridges." So, the law in its majesty prohibits gay and straight men alike from marrying men. Such a prohibition does nothing to straight men, because they don't want to marry men.
In that sense, the deeper issue here is one of the justice of majority rule. If it is right for non-smokers to prohibit smokers from smoking, and non-drinkers to prohibit drinkers from drinking, it's okay for straights to prohibit gays from acting according to their inclinations.
Instead of noting that gay men have the right to marry women, but don't want to, why not put the whole thing in a larger context. Gay men want the same right that straight men have: To marry a person of the sex to which they are attracted.
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