The majority of this article was written way back when same-sex marriage was initially legalised in California. With the current court battle over the constitutionality of the ban on same-sex marriage and the anti-marriage side's odd decision to drag homosexuality itself into the dock, it seemed like a good time to revise and reprint this article.
“The judges overturned the will of the people” ~ It is not the job of the judicial branch to uphold the wishes of the majority. There is a very good reason why very few states and virtually no civilised nations elect judges and that is because it would open them to the same pressures as politicians face. Judges are deliberately insulated from the political process to ensure that they don’t have to follow “the will of the people”. The judges were asked to rule on whether the state’s ban on same-sex marriage conflicted with the state constitution’s ban on discrimination on grounds of sexual orientation. They decided it did. making that decision was their only responsibility. Not enforcing the will of the people, not following the prevailing political winds, simply stating the law as they understood it. If the judiciary’s only function was to rubber-stamp “the will of the people”, there would be little point having them. The judicial branch is independent to guard against the tyranny of the majority, not to enable it. UPDATE: If the current case leads to the decision that the ban is unconstitutional, then we can expect to see this argument and the one below used ad infinitum by the right but it still doesn't change the fact that it is not the judiciary's job to enforce the will of the people. Not least because "will of the people" is so often so close to "whim of the mob".
“Activist judges / legislating from the bench” ~ The phrase “activist judges” has only ever meant “a decision I disagree with”. Of the seven judges who made this decision, six were appointed by Republicans and California currently has a Republican governor, not the kind of people normally slandered with cries of judicial activism. As anyone who has ever studied law knows, it is utterly impossible for a judge to avoid legislating from the bench. In any case at all (except Bush V. Gore), the decision establishes a legal precedent. By the principle of stare decisis (roughly “the court stands on it’s previous decisions”), that precedent then has the force of law to all lower courts unless and until it is overturned, thus establishing law and thus, legislating from the bench. That is how the legal process is supposed to work. It is, in a very real sense, the essence of what judges do. Further, the cry of activism can only ever have any weight (beyond the previously mentioned “decision I dislike”) if a decision is made without firm legal reasoning. In this case, the legal reasoning was entirely sound. The wording of both the State Constitution and the marriage act were exceedingly clear and the court also drew on the decision made in Loving which established the right to marriage as a fundamental right. That is a well-reasoned, well-thought out judicial opinion. UPDATE: Not much to add to this one as the above comments still hold true but an additional point should be made. Laypeople often believe that judges have a great deal more lattitude in their decisions than they actually do. In fact, judicial decisions are constrained by a legal doctrine called stare decisis. Stare decisis is legal shorthand for the principle that similar cases will be decided in a similar manner (mutatis mutandis, obviously). What that means is that courts are divided into strict heirarchy. If, say, the Fifth Circuit Court of Appeals renders a decision, every court in that jurisdiction below them is obliged to render the same decision in same circumstances. This was part of what caused the Ricci case which got Justice Sotomayor in such trouble. Standing precedent (i.e. a case which established the policy of how a particular point of law is treated) said that tests which produced a disproportionate response could be thrown out, even if the disproportionate response was unintentional. Justice Sotomayor rightly applied the existing precedent in that case and kicked the case up to the SCOTUS so they could revise the precedent (which they duly did). The point here is that judges do not make their decisions by consulting a Magic 8-Ball. The law is a complex system of competing precedents, rules of procedure and presumptions. When the layman doesn't understand how that system works, the correct response is to ask for an explanation, not scream "ACTIVIST JUDGE!".
“Now people will be able to marry children/dogs/box turtles” ~ First off, there is no evidence whatsoever that gay people abuse children any more frequently than hetero people and a certain amount of evidence suggesting exactly the opposite. Secondly and more importantly, marriage is (shorn of the religious connotations) a state-sanctioned contract. Children cannot consent to a contract, nor to sexual intercourse so when one is asked “where do we draw the line?”, the appropriate answer would probably be “at people who are able to give consent”. While we’re on the subject, animals are also judged unable to give consent so leave that one at home too. UPDATE: This one is still true as well. Despite the pro-8 side's constant attempts to hammer it into the public mind, there is still no credible evidence that gay people abuse children any more than straight people.
“They’re free to marry someone of the opposite sex, like anyone else so same-sex marriage is a special right” ~ There is a reason the phrase “one size fits all” appears in no known constitution or bill of laws anywhere. If you wish to apply that argument, one can as easily shut down every church except the Satanists, not our fault if you choose to be something different or we could enforce vegetarianism, not our fault if you like a steak. Quite apart from the absurdity of the argument, it becomes rather more sinister when you flip it around: If the government can say I only have the right to marry a woman, why can it not say I only have the right to marry some women? Or this woman? Or this aardvark? A reasonable argument can be made for limiting marriage to two people out of sheer practicality and the need to maintain a tax base but beyond that, allowing the state to decide which people can marry sets a dangerous precedent. UPDATE: This one is still around, although people are becoming more aware of how absurd it is. The "special rights" argument is still ridiculous. If same-sex couples get the right to marry, it won't be limited to gay people. You, average straight person, will have the right to marry Bob from the office if you want to as well. What, that's still a special right because you wouldn't want to? Welcome to the gay couple's current position.
“Marriage has always been between a man and a woman” ~ So was child labour, so was miscegenation, so was slavery. Everything is “always” until we decide it’s something else. The satirist Terry Pratchett once described tradition as “the name we give to something daft we’ve been doing a long time”. His point was not that tradition is inherently a bad thing but that holding a tradition simply because it had always been a tradition was absurd. Until quite (shamefully) recently, it had “always” been legal to force sex upon one’s wife. And then the world grew up and realised that was foul and changed it. Humanity is not static, what was done does not have to continue to be done. If humanity had stuck with what it had “always” done, we would be eating our meat raw and living in a tree. Respect the last by all means but don’t be a slave to it and, when necessary, be willing to learn from it’s mistakes. UPDATE: Since Rick Warren was stupid enough to insist that marriage had been "one man, one woman" for "five thousand years", it's worth debunking that. For most of human history, polygamy was the rule, largely to cope with epidemic child mortality rates. In certain cultures, polygamy is still the rule. For example, Islam allows a man to take four wives (many Muslims do not do so but the option is clearly allowed by the Qu'ran). Then, in the western world, marriage became an exchange of property. The groom purchased the bride from the bride's father. In ancient Egypt, incest was common among the ruling class. In fact, the current arrangement of one-man and one-woman as relative equals is quite recent. Further, many cultures have or had same-sex marriage or local equivelant. Same-sex unions were recognised in ancient Greece and Rome at various times, parts of China and various parts of Europe. The emperors Nero (who was admittedly insane) and Elagabalus (who wasn't) both married men. While records from this period are patchy, the practice was evidently widespread enough that the Roman emperor Constantinius II felt the need to outlaw same-sex unions in 342ad. Finally, one only needs to look at the Sacred Band of Thebes (who also destroy the argument against gays in the military). The Sacred Band were an elite force of around 300 men in the 4th century Theban army. What made them unique was that the entire force consisted of around 150 bonded gay couples. The rationale was that, while a man may abandon his comrade, he would fight through hell to protect his love. It worked. The Sacred Band defeated a Spartan army three times their size at the battle of Tegyra. The one time they were defeated, at the battle of Chaeronea, they had to be massacred almost to a man. The Theban army, outmatched by Macedonia's invention of the phalanx, broke and fled the field with it's allies but the Sacred Band refused to surrender. They held their ground and fell where they stood. The only members of the Sacred Band taken as prisoners were those too injured to fight on. When Phillip II encountered the corpses of the Sacred Band (virtually the entire company, remember), "piled one upon another", he said "perish any man who suspects that these men did or suffered anything unseemly".
“God says it’s immoral” ~ Got God’s fax number? Willing to share it? Then it’s just your opinion. You may have an elderly book that says your god feels this way but I have a book which says otherwise and since neither of us can prove our case or disprove the others, let’s just leave everyone’s gods out of the equation. Or, to quote Sir Francis Walsingham: “Is your god such a worldly god that he must play at politics?”. UPDATE: As "Prop 8: The Musical" reminds us, the Bible also codemns homosexuality in exactly the same language as it condemns eating shellfish. The Bible also allows stoning one's wife, selling one's daughter into slavery and slavery in general.
“It’s unnatural” ~ So is wearing clothes, driving cars, modern medicine, corporations and American Idol. The life of man in a state of nature is nasty, brutish and short. The entirety of human existence has been a flight away from nature, a drive to modify nature to our own ends. That is what has made us the dominant species on the planet and, because we never know when to stop, is killing the planet. Homosexuality has been observed in at least a hundred species (last time I checked, it may be even more now). If animals in the state of nature do it, it is natural by definition. UPDATE: At time of writing, homosexual behaviour (that is, choosing to engage in same-sex coupling even when a mate of the opposite sex was available) has been observed in around 1500 species. In about a third of those, homosexuality is both common and well-documented. It's not difficult to find examples of this. From the German penguins who formed same-sex couples to near-uniformly bisexual bonobos to gay bison so common that Native American peoples have distinct names for them, homosexuality is natural. Case closed.
“It will encourage homosexuality” ~ You can’t encourage an inborn trait. All the
evidence, while not entirely conclusive yet, indicates that homosexuality is almost certainly innate. More to the point, what do you think is going to happen? Are otherwise hetero kids going to notice two guys getting married and think “I’m cured, I want the boys!”. If gay people have been being gay and living as gay and coming out as gay despite the ban on same-sex marriage and despite the phenomenal pressures to be straight and conform and despite the (decreasing but still very prevalent) threat of physical violence, we can safely assume that suppressing gay people hasn’t worked. UPDATE: Still true.
“It will destroy the sanctity of marriage” ~ OK, first off, let’s talk about that sanctity. Last time I checked, the divorce rate was around fifty percent and around eighty percent of married people (men and women) will cheat at some point in their married life so marriage doesn’t currently seem to be very sanctified anyway. Secondly, do you honestly believe that gay people getting married will have any effect on hetero marriages (beyond the minuscule effect on tax revenues)? Straight people are not going to stop getting married purely because marriage is no longer exclusive to them, the human mind doesn’t work that way. UPDATE: This one seems to be what the pro-8 forces are basing their argument on. Hilariously, they've run into a judge who seems determined to make them prove it. There are an increasing number of nations which have legalised same-sex marriage or (as my own UK has) an indentical-in-everything-but-name arrangement. Surprise, straight people in those nations are still getting married. The world keeps turning.
"If gay people can marry, they'll be raising children" ~ This one's a new entry with the prop-8 trial. And the only rational response is "So?". There's quite a lot of research on the effects that being raised by a same-sex couple has on children (just Google it, it's fascinating stuff) and, while the nature of sociological research means that uniform agreement is impossible, the vast preponderence of the research says that children raised by same-sex couples do just as well in every way as kids raised by hetero couples. In certain areas, they actually do slightly better (for example, kids raised by lesbian parents are less likely to develop mental illnesses). There's a tendancy among anti-gay people to claim that children need role models of both genders and that part's true, kids really do need role models of both male and female genders. Where they screw up is assuming that those roles have to be filled by parents, they don't. The child of a lesbian couple (for example) can just as easily gain a male role model from an elder sibling or relative, an involved teacher or coach or their parent's friends (few couples have friends exclusively of one gender). I was raised by my grandmother for most of my formative years and turned out fairly masculine, I even have a beard (the kind that grows on one's face). Moreover, if such people were honestly concerned about a child's wellbeing (rather than just having a convient excuse to be anti-gay), they would pay more attention to the plethora of research which says that the single best model for childrearing is the extended family. It has been proven time and again that the extended family, the traditional close-knit collection of parents, aunts, uncles, cousins and grandparents where everyone pitches in to help raise a child, turns out the most well-adjusted children. That was the normal method of raising children for most of human history although now, as families now live apart more often, it's becoming rarer. Of course, one could also point out how much this argument is based on socially constructed gender roles but I have no desire to turn this into an essay on gender roles and societal expectations.
Further still, one could point out that, due to biology, most gay couples who have children choose to have them. Unlike a straight couple who can concieve a child by accident, a gay couple either has children from a previous relationship who they have chosen (and normally, had to fight) to keep with them or have gone through a very long and trying process to adopt or concieve a child. Thus, that child is very much wanted and loved. A child who feels loved, regardless of the gender of his/her parents will always turn out better adjusted emotionally than one who does not.