A Victory for Liberty in California

By Meacham, Jon | Newsweek, August 16, 2010 | Go to article overview
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A Victory for Liberty in California


Meacham, Jon, Newsweek


Byline: Jon Meacham

At the conclusion of the arguments in Perry v. Schwarzenegger in June--at issue was the constitutionality of the ban on gay marriage that California voters passed in 2008--the leading attorney for the state found himself in a bit of verbal jousting with the judge, Vaughn R. Walker. "The marital relationship is fundamental to the existence and survival of the race," said the lawyer, Charles J. Cooper. "Without the marital relationship, your honor, society would come to an end." As described by The New York Times, Walker pressed Cooper on this, noting, according to the Times, that "there are no rules prohibiting marriage between people who cannot have children."

It was not difficult after that to anticipate the ruling that was handed down last Wednesday. In his decision, Walker, a Reagan appointee, wrote: "Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate--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."

At stake are our era's definitions of humanity and of liberty. There are no more fundamental questions, really, and while the California case focused on largely secular arguments about equal protection, the religious case for gay marriage is a strong one. Broadly put, the Western monotheistic traditions hold that human beings are made in the likeness and image of God, and are thus all equal in the sight of the Lord. (In his The Tenure of Kings and Magistrates, written in 1649, John Milton put the matter bluntly: "No man--can be so stupid to deny that all men naturally were born free, being the image and resemblance of God himself.") If a person is homosexual by nature--that is, if one's sexuality is as intrinsic a part of one's identity as gender or skin color--then society can no more deny a gay person access to the secular rights and religious sacraments because of his homosexuality than it can reinstate Jim Crow.

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A Victory for Liberty in California
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