On an individual's right to choose

This articulated for me what is really at the heart of the controversial issue of same-sex marriage: protecting the individual's right to choose.

On May 15, 2008, in the now famous ruling on same-sex marriage in the State of California, the California Supreme Court stated:

These core substantive rights include, most fundamentally, the opportunity of an individual to establish--with the person with whom the individual has chosen to share his or her life--an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.

To be honest, I don't read judgments issued by courts, as my eyes typically glaze over too quickly, which is why I must thank Andrew Sullivan for his help in parsing the above text for me:

What's notable here is the starting point of the discussion: an "individual." The individual citizen posited by the court is defined as prior to his or her sexual orientation. He or she exists as a person before he or she exists as straight or gay. And the right under discussion is defined as "the opportunity of an individual" to choose another "person" to "establish a family" in which reproduction and children are not necessary. And so the distinction between gay and straight is essentially abolished.

This articulated for me what is really at the heart of the controversial issue of same-sex marriage: protecting the individual's right to choose, a right that has been challenged in this country before, when this country struggled with the issue of allowing inter-racial marriage.

What is interesting to me is that at the end of the day, the legality of inter-racial marriage was argued not on the grounds of morality, but upon the individual's right to choose the person they want to marry. Here is an excerpt from that ruling:

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.

Now forty years later it seems absurd to question this ruling, and even more clear how such arbitrary limitations placed upon marriage were the result of racism and intolerance, and not the logical application of law.

Tomorrow when you head to the polls consider that the issue of same-sex marriage has more in common with inter-racial marriage than it does differences. Then consider how history has judged those that fought to outlaw inter-racial marriage. Do the right thing: protect the individual's right to choose, and be proud in the fact that you will be able to tell your children that you voted against bigotry and intolerance.

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1 Comment

I don't think it's a fair comparison to make between interracial marriage and gay marriage. The aforementioned ruling assumed that the character of the marriage was still according to the common understanding of marriage, which is a heterosexual union between two people that can be reasonably construed as consenting adults (as varies according to state laws regarding age of consent, age of marriage, etc.)

Now, there's nothing stopping most homosexuals from getting married without a state license. It's perfectly legal to seek to have a priest, pastor or what have you perform a marriage ceremony between you and another man, woman, child, animal, your PC, etc. It's only the state license that's an issue.

The real elephant in the room here is the full faith and credit clause. If states like mine, Virginia, can be forced to change our marriage laws to accommodate Connecticut or Massachusetts, that is injurious to basic democracy.

Of course, you could argue that democracy shouldn't limit people's choices, but most advocates of gay marriage won't support the idea of legalizing polygamy. It's hypocritical to argue that gay marriage is a natural extension of marriage in general, but argue that polygamy is an abomination when polygamy has successfully worked in many societies, most notably Islamic ones, and that it is feasible for it to work in a free society where women can choose to leave their husband with minimal threat of violence.

Being an individualist myself, I happen to think that the best option for California would be a new proposition to abolish state licensing of marriage and let each resident decide for themselves how to be married.

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  • I don't think it's a fair comparison to make between interracial marriage and gay marriage. The aforementioned ruling assumed that the character of the marriage was still according to the common understanding of marriage...

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