Morality and the Law

I actually read the decision regarding Proposition 8 today, and there is some interesting stuff in there. Consensus seems to be that there will be a “stay” on the ruling, meaning that licenses will not be issued for same-sex marriages until this reaches the Supreme Court.

The first argument that struck me as odd was the one by Prop 8 defenders that the government has an interest in opposite sex marriage because,

...the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households.

What that had to do with gay marriage was certainly unclear, or what it had to do with people who wanted to get married and not have children.

So sexual activity between opposite sexes produces children, which actually comes as a surprise to some people, so I guess it needed to be said. The government claims an interest in assuring that children are raised in families, so sexual activity that does not produce children… It was actually fairly incoherent, but my impression was that what they wanted to say was that sexual activity should not occur other than within marriage, and it should not occur between persons of the same sex.

Marriage permits sex, and marriage that permits sex between two people of the same gender is wrong, but that they didn’t quite dare to come right out and say that, in part because nobody wants to admit that they are getting married only so that they can legitimately have sex.

You know, “I’m horny, let’s get married.”

I liked the part where the judge wrote, “Proponents’ evidentiary presentation was dwarfed by that of plaintiffs,” which is a lawyer's way for saying “the people defending Proposition 8 were idiots.”

There was a great deal of testimony of the difference between “domestic partnership” and marriage, and I do not question in the least that there is a vast gulf between the two. Additionally, there is a very distinct legal difference, and if you doubt that just ask the petitioners in the other landmark case wending its way to the Supreme Court. Those people are married in Massachusetts. There is no doubt as to their status, as their home state still recognizes same-sex marriage, but they are being denied the federal recognition of that status as to tax status and other benefits.

The testimony of several witnesses disclosed that a primary purpose of Proposition 8 was to ensure that California confer a policy preference for opposite-sex couples over same-sex couples based on a belief that same-sex pairings are immoral and should not be encouraged in CA.

Enter the Mormon Church. I don’t think I need to say more about that.

In one part of the ruling the judge discussed the aspect of the proposition, the degree to which it was based on the belief that same-sex marriage was inferior due to a moral objection to homosexuality and said “this belief is not a proper basis on which to legislate.”

I have long maintained that the only valid basis for any law is the welfare and protection of the society. No law should ever be passed on a moral basis, because to do so violates the separation of church and state; more specifically it infringes on the individual’s freedom to practice the religion of his choice in the manner dictated by his conscience.

The law against murder, for instance, has no valid justification in the Bible or any other religious rule or text. The only validation of that law is that it protects me from the actions of my neighbor. The law exists not because the act is intrinsically right or wrong, but because the act infringes upon my right to enjoy the safety of my neighborhood and community.

That’s what the judge was saying in this ruling. If you want to infringe upon the fundamental right of gay and lesbian people to marry then you need to show some overwhelming damage to society that would be done to society by allowing them to do so. Defenders of Proposition 8 did not even come close.