Thursday, August 05, 2010

Prop 8 overturned

By now you know that the federal court judge in the Prop 8 case has ruled that the Proposition violates fundamental rights. I believe he is right. His ruling goes into great detail about the evidence offered and the conclusions he drew and why he drew them.

The ruling is 136 pages, which is not a quick read. I want to focus on one aspect of the decision: is there a compelling reason for the state to restrict marriage to opposite sex couples? Judge Walker wrote:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite- sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.
Now, I come at this as a libertarian, as someone who passionately believes in freedom of choice. What restricts choice in libertarian theory? The answer is anything that violates the equal rights of others to life, liberty and their property. In a perfectly privatized, stateless world, what would restrict marriage? Nothing. Marriage would be a private matter and outside the influence or control of any body of people.

This is how marriage was seen historically. Marriage predates the church so it was NOT a religious institution. And marriage predates the nation state as well. Marriage became a state institution at the explicit demand of Protestant Christians. Contrary to the false claims of Religious Right, the state didn't take marriage away from the church, but Christian Protestants demanded the state take the function of marriage in order to directly challenge Catholic claims that marriage was only valid if performed within the Catholic faith.

In the absence of state control would there be any real limitation on whether or not same-sex couples could marry? Clearly not. Civil society has been recognizing same-sex couples as "married" in everything but name only, but not so the State.

In a state of natural liberty same-sex couples would be free to form marriages. Under the demands of the Christian Right of the day (Calvin and his followers) the state took control of recognizing marriages and began doling out liberties and rights on the basis of ones marital status.

As long as that is the state of affairs, under US constitutional theory, then the state must justify its restriction on the freedom of same-sex couples to marry. Over the centuries the courts have outlined what would, or would not, legally justify a restriction of individual rights. And we must be clear that marriage laws restricted the rights of same-sex couples to marry, while granting the same right to opposite-sex couples.

Judge Walker asked whether there was some compelling state interest that justified this restriction on the rights of same-sex couples. He said that the proponents of Prop 8 were unable to justify such restrictions. As such he ruled that the State may not restrict the freedom of same-sex couples to legally marry. Walker wrote: "Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause. Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest."

In other words same-sex couples ought to have more freedom of choice than the law allowed. This ruling does not expand State power but says that the State can no longer restrict the rights of same-sex couples. This ruling limits State power and expands individual choice and freedom. That is something every libertarian ought to applaud.