Posts Tagged ‘gay marriage’

Last week New Zealand, this week France.

C’est à vous Julia or Tony

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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.

Words from the United States’ declaration of independence, wonderful sentiments, a great creed for a nation to aspire to, a bar by which the US set itself, at its inception, to be measured, and the creed by which I measure the US.

This creed is a dream. It is a dream that Martin Luther King Junior alluded to in his famous 1963 ‘I have a dream’ speech. It is a bar that the US has never reached, but from time to time it does something to show the world that it is aware that that bar is still there. The most recent example of this is the election of Barack Obama. At all other times, the US appears to me, to be at war with what it stands for.

The United States’ ongoing war with its own creed, while frustrating in its outcomes, is highly entertaining to watch.

The California Supreme Court today has guaranteed another series of episodes of this war, specifically the battles surrounding the right to marry, by validating both Proposition 8 (which banned same sex marriage), and those same sex marriages that were legal at the time they were performed. It has guaranteed such a sequel by delivering a decision that gives each side of the issue, both heart, and a direct cause to fight again for their point of view. Conservatives would have been heartened by the court’s validation of prop 8 but not the validation of the 18, 000 marriages. Progressives would have been heartened by the court’s validation of the marriages, but not the validation of prop 8.

Let me set the scene for this inevitable sequel. Same sex marriage is illegal in California as per the legally validated Proposition 8… BUT, the 18,000 same sex marriages that were performed before Prop 8 was voted on have been declared valid. 18, 000 couples are in essence legal precedents. In a state where only straight people can be legally married, these couples are in effect  ‘honorary straights‘ in relation to marriage law.

As I understnand it, and in my opinion, the situation that the California Supreme Court has presented, is not only contradictory, it is untenable and will be resolved in one of two ways.

Firstly ballot initiatives. Opponents of prop 8 will raise signatures to place a question removing prop 8 law from the California Constitution onto the 2010 Ballot; and proponents of prop 8  will also raise signatures to place a question to invalidate the 18,000 marriages onto the same ballot. I cannot wait to read about and follow those battles.

Secondly, the issue will be taken to the US Supreme Court. This is where the whole issue of same sex marriage in the US may eventually have to be resolved anyway, as was the issue of mixed-race marriage resolved there in 1967.

So, coming soon to a news servise or blogsphere near you, a gripping saga with a 2010 release date, PROPOSITION 8 – THE SEQUEL, when the US is once again at war with what it stands for.

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If the denial to gay and lesbian people of the right to marry is based upon a PERCEIVED threat to children – it must then stand to reason that those people who are ACTUALLY a threat to children, or who have who have been found GUILTY of ACTUAL child abuse, ought have their right to marry revoked.

In my opinion, if you take the Christian right’s arguments against marriage equality to their logical conclusion, then the right to marriage can be revoked on many levels. For example, a couple of old chestnuts… Claim – Marriage is about procreation. Logical conclusion – non-productive consummation of marriage is grounds for annulment of that marriage, as they have done damage to the institution as a conduit for procreation… another… Claim – The love between a man and a woman is special/sacred and must be treated as such. Logical Conclusion – Those found guilty of spousal abuse ought have their right to marry revoked, as they have done damage to the institution as a special/sacred loving union.

Religious rightists railing against marriage equality between hetero and homosexual people are not really interested in protecting’ marriage, nor are they really interested in protecting children, nor are they really interested in protecting the wellbeing of those in marriage. They are by their words, coupled by their lack of action in actually doing what they say they are defending, are simply protecting and defending their own ideology and positions of power.

The institution of marriage, of itself, does not create nor protect children, it does not protect those in a marriage from each other, nor does it elevate one class of couple’s love above another’s – for love simply is… The quality of, relevance of, protectiveness of, and the loving and nurturing nature of the institution of marriage can only be generated in the hearts and minds of those involved in such relationships. Such virtues are not the sole preserve of one class of person or couple, are not found in greater or lesser quantities in straight, gay, bi, or asexual people – but are intrinsic to individuals, and are amplified when coupled through love.

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In oral submissions in the case seeking to overturn Propoition 8 in California, Kenneth Starr, the chief lawyer defending Proposition 8, on Thursday said that the majority has the power to overturn any right it so chooses to, including that of free speech.

As reported by ReutersKenneth Starr… repeatedly told the court that a simple majority could limit rights up to and including free speech under a state constitution designed to give citizens broad power to legislate through the ballot box.

Think about it  – any right, to anyone, would be subject to the whim of the majority at the time.

Starr’s position is extremely dangerous.

Scenario, the government creates an environment of extreme hostility against a specific minority at a specific time. There is a propposal launched to punish or ‘get rid of’ this minority, and the majority like sheep vote for it.

Imagine if Kenneth Starr’s opinion was law during the 50s comunist witch-hunt period?

Could the majority be so convinced to act in an extreme fashion against a disfavoured minority? Remember, a democratic Germany was convinced enough to vote for the anti-semitic Adolf Hitler.

Perhaps some of the words in the US declaration of Indepndence should be rewritten thusly:
We hold these truths to be generally agreed to at this time, that all men are created, if they correspond to cetain acceptable conditions, equal. That they are endowed by the majority with certain momentarilly granted Rights, that among these are Life, Liberty and the pursuit of Happiness, as the majorty may define them.

Is that the way it should read Mr Starr?

It seems to me that some Americans love their Declaration of Independence and Bill of Rights like a boxer loves their punching bag.

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Rights for one are rights for all
if it be else then none at all

I will state from the outset that I do not live in the US, nor am I from the US. I live and was born in Australia, a country that does not have a bill (or charter) of rights. Laws, their interpretation, and any rights that are recognised therein are decided by judges who are not elected to their position.

There is, at present, a discussion surrounding the possibility of the implementation of a bill of rights into Australian law. I hope that such a bill of rights does not follow the path of the US bill of rights or those from the states within the US (as I understand those paths to have been). One aspect of this path is the concept of inalienable (unalienable) rights as stated in both the US declaration of independence, and the California Constitution’s Declaration of rights.

Inalienable rights are those perceived to be intrinsic to human life and society within a code of laws; expressed in the declaration of independence as life, liberty, and the pursuit of happiness. Perhaps these broad constructs (life, liberty, etc.) are the embryo of what we know today as human rights (a line traceable through the UN declaration of human rights – 60 years old this month).  Rights that are considered inalienable are those which cannot be repudiated.  they cannot be legislated away by governments, nor can they be voted away by the majority… or can they?

As I see it, within the broad constructs of life, liberty, pursuit of happiness there would be specific aspects of being that pertain largely or exclusively to one of the constructs which have been deemed inalienable rights. These specific aspects may be defined as specific individual rights, within, or being intrinsic to, ones life, liberty, or pursuit of happiness. One of these recognised individual rights is the right to marry.

In the twentieth and twenty first centuries judges and the UN have recognised marriage as a basic human (inalienable) right. In 1948 the UN, in Article 16 of the Universal Declaration of Human Rights recognised the right to marry. In 1967 the US Supreme Court recognised that the right to marry extended to interracial couples as per the equal protection clause in the 14th amendment to the US constitution. In 2008 the Californian Supreme Court recognised that the right to marry extended to same-sex couples as per the equal protection clause in the Californian constitution. The California court determined the right of same sex couples to marry ‘to be part of fundamental liberty.’

It is now contemporary history that opponents of same sex marriage saw Proposition 8 placed onto the November 5 ballot and passed to overturn the decision of the Californian Supreme Court.

Supporters of same sex marriage have launched legal challenges against the passage of the proposition 8 claiming that the proposition was a review not an amendment to the constitution and is therefore invalid.

The California Attorney General Jerry Brown (as per his job) submitted to the court a document that supported the arguments of those who supported proposition 8, but he concluded with an argument that opposed prop 8 and called for its rejection on the grounds that a right that is recognised as inalienable should not be placed at the mercy of the majority.

In defending, and reconciling his apparent polarity of positions, he states in his brief to the California Supreme Court: Respondent Attorney General (himself) is the chief law officer of the state. In that capacity he is duty bound to uphold the whole of the constitution, not only the people’s reservation of the initiative power, but also the people’s expression of their will in the Constitutions Declaration of Rights.”

In this, I see him stating that he is the servant of two masters (the voters and the constitution), not the slave of one.  In that, he must accept, defend, and enact what the voters decide through the initiative process, but protect the rights in the constitution from the voters where necessary. He continues “In reconciling these separate constitutional protections, Respondent concludes that the initiative power could never have been intended to give the voters an unfettered prerogative to amend the Constitution for the purpose of depriving a disfavored group of rights determined by the Supreme Court to be part of fundamental human liberty.”

He appears to be arguing that there would be no point in having a declaration of rights (specifically inalienable rights of human liberty), if the voters have an unfettered prerogative to remove rights from people they don’t like at their whim. He sees this case as the thin edge of the wedge. In that while the current case is about the right of same sex couples to marry,  something determined by the Supreme Court to be part of fundamental liberty, the underlying issue goes far beyond the issue of same sex marriage; and as far as I am concerned it goes beyond just one state’s constitution, it smacks at the very relevance of a bill (or declaration) of rights. If the voters can remove the existing ‘fundamental’ right of same sex couples to marry, what rights can’t be removed from others?

If Proposition 8 is allowed to stand, there will be nothing to stop someone from proposing to overthrow the ban on interracial marriage… The precedent proposition 8 will create will place any and all protections for minorities at the will and whim of the voters. Jerry Brown poses the question; “At bottom, the question is whether rights secured under the state constitution’s safeguards of liberty as an ‘inalienable’ right may intentionally be withdrawn from a class of persons by an initiative amendment.” In my opinion, if such inalienable rights can be removed by a majority vote, then there is no such thing as an inalienable right – in fact the very idea of a bill or declaration of rights will have been rendered irrelevant.

As goes California so goes the country?

I hope those in Australia who are considering implementing a bill of rights here are watching California very closely.

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Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Loving v Virginia, US Supreme Court 1967

Amid the justifiable celebration over the election of Barack Obama to be the next President of the United States. Amid the self-congratulations of Americans on breaking an important barrier in their politic, and by extension, western politics. Amid the wonder of the moment of what was perceived by some as human progress, an embrace of real change, I was aware that this change was not universal and the embrace conditional.

At the same time that Americans voted for the first non-white President in their history, a monumental and historic change in itself, voters in the state of California voted to eliminate a right for a minority.

Earlier this year the California Supreme Court ruled that California’s existing constitution allowed for marriage between same sex couples, largely through its equal protection clause. Groups who oppose marriage for same sex couples, and wishing to maintain marriage as a heterosexual privilege (rather than the right it is) procured the required number of signatures to put the issue on the ballot for the November election (Proposition 8). Proposition 8 has been passed by the voters, and a right for a minority has been eliminated by the majority – Tyranny by democratic means – for the rights of a minority will almost never be supported by the majority, that is what the courts are for.

There has been some talk out of the US about ‘activist judges’ who make rulings in favour of minorities, in opposition to the wishes or expectation of the majority or those in power. What seems to be forgotten is that it is these very acts of perceived activism by judges, or legislators, who have implemented laws or made rulings (rather than popular vote), that have been the catalyst of the progress in rights that they exhibit pride in. Americans appear to be proud of their Supreme court, yet it was the Supreme Court in 1967 that performed an act of that would today be called judicial activism by redefining the boundaries of marriage in the US, by removing the racial boundaries of marriage. I belive that upwards of 90% of Americans were opposed to inter-racial marriages in the 1960s, yet the Supreme Court (not the voters) ruled anti-miscegenation laws unconstitutional, that there will be no race based restrictions on marriage. This decision leant on the 14th Amendment to the US constitution, its equal protection clause.

In my opinion, limiting the right to marry by race or by sex is to set up a system of arranged marriages. This system demands that one group must marry (if they choose to do so) those from a group of the majority’s choosing, not of the individual’s choice. Such a system is the denial of love and the imposition of power by the majority. The right to marry is no longer limited by race and love between the races is free, but not between those of the same sex. Power has once again been cruelly and unfairly imposed upon the love of same sex attracted people by the voters in California and across much of the United States.

In a country that prides (and advertises) itself as the defender of individual rights and liberites. A country where its very own declaration of indipendence states that it beleives that all men are created equal, and that they are imbued with inalianable rights of life, liberty, and the pursuit of happiness. A country whose courts are the bastion of, and catalyst for, human and civil rights; there is a country who appears to need to oppress someone, even at the level of a basic human right – like that of marriage – the freedom to love the one you love.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

Mildred Loving

To paraphrase Barack Obama’s catchphrase during the election -Can Americans fully embrace real change for everyone?


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I have been reading about the recent discovery of the emaciated corpses of twin infant siblings in their cot. Reports say that the children may have lain there dead for up to a week. The parents, both mother and father, have been charged with murder and torture of those children. I cannot help being reminded that “children are always best served by being brought up by their biological parents” or “in a family headed by a man and a woman”.

The all too recent case of the father who imprisoned his daughter, regularly raping her and fathering seven chidren by her; while his wife sat upstairs seemingly unaware of what had been going on for 24 years – reminds me how important keeping marriage heterosexual is, in protecting children from sexual predators.

Any number of spousal abuse cases remind me of the “special and unique bond and relationship that can only be between a man and a woman, which leads to children”.

Like a dog chasing its tail, it goes around in circles, focussed only on itself.

Whilst not directly related to the above topics of abuse, the issue of same sex marriage is made relative to these topics and issues by the rationales behind denying same sex attracted people the right to marry. The reasons given are singularly and collectively a furphy, and a dangerous furphy at that; behind which, abuses like those above, and so many many others are hidden from the view of others. How else can the unscrupulous and the uncaring in our society create such calamity without the slightest hindrance.

While I do not for a moment pretend that same sex couples are any better or worse than heterosexual couples, or that individual families are not subject to abusive situations; I can’t help being reminded that in Australia there are at least 30-40,000 reported cases of child abuse and neglect every year, yet it is seen by the opposition to be important to deny same sex couples recognition of their relationships, and call it an act of protecting children, and the institution of marriage.

It makes me wonder if this country is more willing to tolerate thousands upon thousands of acts of child abuse and neglect more than one gay marriage.

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