Another Fight as Miserable as the Rest

I support gay marriage. I believe they have a right to be as miserable as the rest of us.
---Kinky Friedman

On Thursday, May 15, 2008, the California Supreme Court issued a very lengthy decision overturning California's ban on same-sex marriage. I remember the day well. I called my partner to inform her of the ruling, read the relevant sections of it to her over the phone, and discovered later in the evening that impromptu celebrations on the streets of San Francisco's Castro district made it moderately difficult to drive my car around looking for a parking space. In any case, the mood in the city was rightfully one of universal jubilee.

Naturally, though, California's local authoritarians aren't standing for this affront to . . . uh . . . tyranny, I guess. Spurred, no doubt, in large part by their beliefs that the institution of marriage has remained utterly static since its inception as an irrevocable familial property-sharing arrangement in which the woman was one piece of the property, and that their deity will literally make the sky fall if the decision remains the law of the land, more than one million inexplicably obsessed activists have put the matter up for another popular vote this November.

Yes, it remains a serious flaw of the California Constitution that it can be amended by a mere majority of voting voters in a particular election. I suppose that gay marriage activists should have gathered signatures for a simultaneous proposition that might have nullified the one that will appear on ballots this fall. Something like, "Rights protected by the California Constitution shall not be rescinded except by amendment to the Constitution approved by a two-thirds majority of all registered and eligible voters."

But I digress. What I really want to convey is my position as a Libeqrat: Government ought to get out of the marriage business altogether. Each and every individual should have the right to enter into a marriage contract with any other individual or individuals, and the terms of that contract should be defined by those individuals themselves, not the state. And that should be that. To the extent that there are disagreements among the parties, courts can interpret and enforce the contracts. Viewed as such, gay marriage is a simple liberty issue, an issue of the pursuit of happiness.

The Supreme Court's decision, moving though some of it is, is couched in the convoluted parlance of "fundamental rights," tracing the history of the concept in federal and California jurisprudence, weighing the state's interest establishing the rights and responsibilities of marriage, and limiting them to certain kinds of people, all to reach the conclusion that marriage is now one of the fundamental rights of individuals. Why bother with this analysis? Why do courts place the burden on individuals to prove that a right is "fundamental" rather than placing the burden on the state to prove that it has been delegated the power to limit individual liberty? And why should the state have the right to define and limit a contractual marriage relationship at all?

I haven't seen any public figure or talking head express the Libeqrat view precisely, though, interestingly, professional wrestler and former Minnesota Governor Jesse Ventura opined to Pat Buchanan that the government should only recognize civil unions, leaving marriages to the church. (Buchanan, of course, responded with a typically Orwellian understanding of tyrant judges, prompting Ventura to explain the concept of tyranny of the majority to him.) In any case, I will of course be working to prevent the proposed Constitutional amendment from passing in November. But with each of our basic liberties having to be earned ad hoc, the fight between the anti-equality authoritarians and the gay rights activists promises to be as miserable in California as it has been in the rest of the states.