Californian Jurisprudence To The Rescue?

Every morning I drive down Santa Monica Boulevard in West Los Angeles, past the largest Mormon Church in Southern California.  Before Proposition 8 – the state referendum functionally banning gay marriage – passed, I felt fairly ambivalent towards the looming concrete structure, anointed by the large gold figurine of a man pointing east towards Jerusalem.  Other than this golden calf, the building itself has few defining features; a bland assault on architectural curiosity.  Its wrought-iron fence and large, uphill lawn are marked only by an attractive black family on a billboard that proclaims, “I wanted to know how to keep my family together.”

Since November 4th, however, each time I drive by I want to yell, “Fuck you!” out the window.  I want to drive up onto the sidewalk and take a hammer to the metal divide and charge up the grass like it is Normandy Beach.  I want to scream to the utterly deaf walls, “Don’t you see the irony in infringing on another minority’s marriage rights? Does the word polygamy ring a bell?  How many soccer practices do your parents have to miss before one becomes intolerant and submissive enough to join or remain a part of this institution? Is it more or less than a woman who decides to become a porn star?  Have you seen that episode of South Park? You know, the one that makes it patently obvious that your beliefs are absurd?”  I know it is entirely childish, but I cannot help it.  It certainly does not help that I’ve never actually seen anyone – ever – enter or leave the building.  Who are these faceless, nameless oppressors?  It’s infuriating.

From week to week, there is an occasional smattering of protesters in front of the church. My favorite dissident so far was a twenty-something guy, flamboyantly dressed in rainbow garb, holding a sign that read: “Honk if you support love!”  Is this guy the threat to Californian families?  The hilarity of his dissent stood in stark contrast to the seriousness of the situation. He danced up and down Wilshire in front of the silent building, by himself, drawing dozens of honks and cheers from the rolled down windows of passersby.  The outright public relations victory of the jovial protester is not surprising considering the liberalism of Los Angeles.  West Hollywood, an enclave of gay and lesbian culture, is only fifteen minutes northeast of the Mormon Church.  To put it bluntly, the repressive and backwards religiousity of Mor-Mania is entirely out of place in a city that lives and dies by the entertainment industry.  My girlfriend works at a prominent talent agency and, if its employees and clients are any indication, television, music and film would almost definitely shut down without the participation of gay people.  Religious fundamentalists still watch TV and go to the movies, right?

I have had many discussions about gay marriage since the campaign to pass Proposition 8 started to crystallize a few months ago.  Many of my liberal cohorts have argued that it is not really necessary for gay culture to participate in religious marriage, because they view civil unions as enabling of the same rights, privileges and throw-your-shit-around screaming matches inherent to most marriages.  In my opinion, this perspective, while informed, is not cognizant of the social and legal realities that a gay marriage ban brings with it, particularly in California.  There is a degree of historical amnesia that this civil unions argument engages with respect to the civil rights struggles of blacks and the failure of the ‘separate but equal doctrine’ of the pre-Brown v. Board world.  Like ‘whites only’ and ‘colored’ schools and water fountains, civil unions exist only for gay people.  It is another, more sophisticated ‘separate but equal’ legal instrument that serves only one purpose – to exclude gays from state-recognized marriage.  That the church and state should be exclusive in American society, contrary to many claims, only reinforces the unfair duality of the marriage/civil union distinction.  What constitues marriage should be up to the people getting married, not the state.  Christianity and Mormonism do not have exclusive rights on the right to marry or its definition.  Many religious zealots from these camps seem to forget that marriage was not the product of their faith.  Plato, in his many dialogues, argued that marriage is “the ideal institution.”  Indeed, religious and social definitions of marriage precede Christianity by many millenia throughout the world.

When studying the history of black civil rights in my earlier education, I always liked to think that I would have been one of those white kids marching and boycotting alongside the blacks.  In returning to that sentiment, I have realized that the current struggle for gay civil rights is exactly equivalent. Sure, gays were never owned as physical property, but that does not take away from the fact that they are also and still excluded and marginalized. As a straight guy, I have the same desire to “speak for the other” that is gay culture.  Not that gay people are an ‘other’ to me, but that the highest exercise of political and social participation comes from protecting minority rights.  True representative democracy and deliberative justice requires the absolute equality of its citizens.  Fortunately, there is good news amidst the maelstrom of anti-equality raging in the United States against its gay and lesbian citizens.

The California Supreme Court, the same higher court that initially legalized gay marriage in California, ruled this week, 6 to 1, that it would hear the case brought by gay rights lawyers to overturn Proposition 8.  I reviewed the proposed Writ of Mandate and I think that there is a very good chance that the court will rule to either overturn the ban or embrace a via media to allow existing marriages to remain intact, while preventing new marriages from occurring.  Their legal argument is fairly brilliant and entirely necessary.  Gay rights lawyers from San Francisco and Los Angeles have contended that a “bare majority” of California citizens cannot vote, even through referendum, to restrict the rights of an unpopular minority, because that would undermine the purpose of the courts and their obligation to uphold minority protections.  Only an “amendment” to the California constitution could allow such a “tyranny of the majority” to come to pass, not a “revision” like Proposition 8.  In my own legal opinion, I think that is a very compelling case for a variety of reasons.

The historical role of the American court system has been to protect minority rights, whether racial, sexual or class-based.  If a majority of citizens could simply vote to restrict the rights of an unpopular minority, the worst aspects of democracy would come to fruition.  The greatest accomplishment of the court system in America has not been to check the power of Congress and the President, but to ensure the constitutional obligations of equal rights apply to all citizens.  California has stood at the forefront of that heightened sense of jurisprudence, particularly the 10th District Court of Appeals, which is routinely criticized for its “judicial activism.”  The idea that, by ensuring equal rights, a court is functioning without regard to the Constitution is absurd.  It is not activist or prejudicial to fulfill the intent of our experiment in republican governance – to create power by the people for the people.  Referenda may be democratic in most instances, but not when they act to delegitimate unpopular minorities.  The court system’s true value comes from overruling those tendencies and keeping republicanism intact.

As the California Supreme Court begins deliberation on this sensitive issue, I hope that their informed jurisprudence comes to the rescue of minority rights once again and brings our progressive state back to the forefront of sociopolitical thought. Anything less would guarantee a return to the world of ‘separate but equal’ – and that is entirely unacceptable.

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