In The Aftermath of the Prop 8 Decision

We all knew that no matter which side won the court battle over the Proposition 8 issue, it wouldn’t end there. It’s no surprise that whichever side lost the case would appeal. In the end, it’s not even a shock that when the judge issued a fair and considered ruling, the opponents of gay marriage would cry foul, arguing that the judge should have recused himself because of his sexuality (which, by the way, has been rumored but never confirmed). For the record, Judge Walker didn’t seek out the case, it was assigned to him at random. Hmmm, that rather waters down their argument.

I find the argument that the judge should have recused himself due to his supposed sexuality offensive. If the judge had been a confirmed openly heterosexual man (not rumored, mind you, but actually confirmed) — and if that same openly heterosexual judge had issued the exact same ruling — would opponents of gay marriage have argued that he should have recused himself because of his sexuality? I find the whole thing a tad bizarre. Actually, I find it amazingly hypocritical.

In the days since the decision came down from Judge Vaughn Walker for the United States District Court for the Northern District of California, opponents of same-sex marriage have been spewing all sorts of nonsense. In fact, they’re spewing the same sorts of lies and untruths that they presented at the Perry trial in the first place. The holier than thou attitude is what offends me the most. Second only to the lies, of course.

Here’s a perfect for instance … Tony Perkins, head of the Family Research Council, says:

“I think what you have is one judge who thinks he knows — and a district level judge and an openly homosexual judge at that — who says he knows better than not only 7 million voters in the state of California but voters in 30 states across the nation that have passed marriage amendments,” said Perkins. “This is far from over.”

Here’s the problem with that logic: when voters discriminate against a group of people, it is the job of the courts to fix the problem. That’s why the courts are a separate branch of the government. They’re supposed to be impartial. They’re also supposed to uphold the Constitution.

The hysteria over gay marriage is based on religious and/or personal views that not everyone happens to share. Just because one doesn’t agree with something doesn’t mean that person should be able to vote to prevent other people from having that particular right. We’re all supposed to be afforded the right to life, liberty and the pursuit of happiness. Well, that’s what the Declaration of Independence purports to offer us.

Some people argue that marriage should be reserved for one man and one woman because the purpose of marriage is to procreate. Come on. In an age where many of the same people who oppose gay marriage use birth control to prevent themselves from having children, that seems quite the oxymoron. I’ve had several dozen clients over the years who have been married to opposite sex partners and who do not have children because they made a conscious choice NOT to have them. Should John Q. Public run to the polls this November and pass a referendum to prevent opposite-sex couples from marrying unless they promise not to use birth control? Should our legislatures pass laws to mandate that if a married couple fails to have children their marriage is null and void? Hey, maybe would should vote to stone those people in the town square.

Those who argue against gay marriage in the name of religion should take note of the fact that although it is against the beliefs of many religions for married couples to divorce, the divorce rate in this country is sky high. Should we do as the man in California suggested and legislate against divorce by heterosexual couples? If they vowed to remain together until death do they part, should we make it a law that they must remain married no matter what? I bet the homicide rate would rise dramatically if John Q. Public won a referendum on that one. Divorce lawyers would be out of business but criminal lawyers would be busy!

In the end, we all know this business of appealing will take a long time. In the interim, I agree with the L.A. Times: Let gays wed while the Prop. 8 ruling is appealed.




Disclaimer:  The information, comments and links posted on the blog do not constitute legal advice.   I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2010 Irene C. Olszewski

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