Friday, August 06, 2010

Marriage Paradox

Rachel Maddow on Wednesday and Thursday evening described the relatively muted reaction of the Republican Party to the decision (transcript here) in U.S. District Court on Tuesday striking down anti-gay marriage Proposition 8. Maddow (transcript here) on Thursday observed "Republicans are just letting this opportunity go.... there has been some response on the right- but it's been minimal."

She then asked for an explanation Jonathan Alter, who expressed the conventional reason that the GOP's strongest issue is one of economics and that raising cultural issues is politically hazardous. (Not coincidentally, Alter and most of the Village are more sympathetic to the pro-corporate obsession of the Republican Party than its stance on issues of sexual mores. Please, no Vitter or Ensign jokes.)

That may be true- but give the Republican Party credit for a sort of ideological consistency. This is the party that gave you "family values" as a campaign device and rhetorical trump card (again, no Vitter or Ensign jokes). Pornography- bad; abortion- bad; gay sex- bad; women in the workplace- bad; unmarried women or married women without children- bad. (For those under the age of 30: somewhat subtly, that was part of the GOP message.) There was no more politically powerful message of the cultural right than "the sanctity of marriage."

Consider that

Legal experts such as Stanford University law professor Michael Wald said that Walker's opinion was strongly worded, well-reasoned, and could be difficult to overturn.

Wald said it's significant that Walker made a voluminous "findings of fact" that showed Proposition 8 was unconstitutional. The "findings of fact" phrasing is important because appeals courts have to pay deference to those conclusions - essentially they have to assume that the findings are true.

"Walker held that there is one fundamental right to marry and excluding gays from enjoying that right is unconstitutional," Wald said.

Among these findings of fact were seven which argued the value of marriage to society and to the individuals entering into it. For example:

(#34) Marriage is the state recogition and approval of a couple's chice to live with each other, to remain committed to one another and to form a househld based on their ow feelings about one another any dependents.

(#38) Marriage benefits both spouses by promoting physical and psychological health. Married individuals are less likely to engage in behaviors (sic) detrimental to health, like somoking or drinking heavily. Married individuals live longer on average than unmarried individuals.

(#39) Material benefits, legal protections and social support resulting from marriage can increase wealth and improve psychological well-being for unmarried couples.

And for the caketopper:

(#52) Domestic partnerships lack the social meaning associated with marriage and a marriage is widely regarded as the definitive expression of love and commitment in the United States.

The right was always pithier and more emotional but couldn't have stated it better- marriage as next to godliness. Judge Walker cited five court cases which he maintained have established the right to marry as a fundamental right. Establish something as a fundamental right, and any effort to abridge it prompts strict scrutiny by a court- a high bar to overcome.

Judge Walker observed "the parties do not dispute that the right to marry is fundamental," determined by whether the "right is rooted 'in our nation's history, legal traditions, and practices.'" It is ironic, if nothing else, that a court would endorse alteration of an institution- marriage- by citing that institution's tradition as part of the national social fabric.

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