Esoteric Dissertations from a One-Track Mind

July 31, 2008

Re: Orson Scott Card – State job is not to redefine marriage

Filed under: culture, politics — Tags: — codesmithy @ 10:14 am

Orson Scott Card has a post on gay marriage claiming it represents “the end of democracy in America.”  Further claiming that

These judges are making new law without any democratic process; in fact, their decisions are striking down laws enacted by majority vote.

I think Mr. Card needs a little bit of a civics lesson.  We have this thing called a constitution that is the supreme law.  Occasionally, legislatures pass laws that are in contradiction with the constitution.  If the judiciary finds this to be the case, then the constitution wins and the law is struck down.  This usually doesn’t spell the end to democracy however, because there are still avenues to change the constitution itself.

As for the end of democracy in America, in the cases of California and Massachusetts, these are state decisions.  The relevant laws are state laws, constitutions and precedents, not federal.  Maybe it is a disturbing trend in Card’s eyes, but nevertheless it is limited to two states, forty-eight others are fine.

Further on Card states:

The pretext is that state constitutions require it — but it is absurd to claim that these constitutions require marriage to be defined in ways that were unthinkable through all of human history until the past 15 years. And it is offensive to expect us to believe this obvious fiction.

Did he read the California decision?  Here is the copy.

In considering this question, we note at the outset that the constitutional issue before us differs in a significant respect from the constitutional issue that has been addressed by a number of other state supreme courts and intermediate appellate courts that recently have had occasion, in interpreting the applicable provisions of their respective state constitutions, to determine the validity of statutory provisions or common law rules limiting marriage to a union of a man and a woman. These courts, often by a one-vote margin, have ruled upon the validity of statutory schemes that contrast with that of California, which in recent years has enacted
comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same substantive legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple.  Past California cases explain that the constitutional validity of a challenged statute or statutes must be evaluated by taking into consideration all of the relevant statutory provisions that bear upon how the state treats the affected persons with regard to the subject at issue.  Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a “marriage” whereas the union of a same-sex couple is officially designated a “domestic partnership.” The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.

Marriage wasn’t redefined.  California already had a comprehensive domestic partnership law in which all the same rights were basically conferred.  That domestic partnership law was something passed in the last 15 years (1999 to be exact (source)).  The California Supreme Court found this duality unconstitutional, and the ruling makes numerous references to relevant information if Card were so interested.  If the pretext is so patently absurd as Card suggests, he should have no problem pinpointing a California law that clearly demonstrates an error.  However, Card cites no California law, relevant sections of the California constitution, or precedents.  However, he would have us believe that he is more an expert on California law than the majority of justices on the California Supreme Court.

Card later bemoans being labeled a homophobe.  He claims he is a victim of this labeling by opposing the gay-rights activists.  Maybe it is because of his rampant paranoia in the paragraphs above and below.

Already in several states, there are textbooks for children in the earliest grades that show “gay marriages” as normal. How long do you think it will be before such textbooks become mandatory — and parents have no way to opt out of having their children taught from them?

There is this little thing called transparency, and this whole paragraph is terribly opaque. Which states?  Which textbooks?  Can he give an example?  Or is Card talking about “Heather Has Two Mommies?”

Card then goes on to state that: “when gay rights were being enforced by the courts back in the ’70s and ’80s, we were repeatedly told by all the proponents of gay rights that they would never attempt to legalize gay marriage.”  That is highly dubious.  Individuals have their own agendas.  In addition, there is a whole new generation of gay people, why should they be bound by the promises made by gay people before them.  It isn’t like they were their parents.

Then Card goes off the deep end.

Here’s the irony: There is no branch of government with the authority to redefine marriage. Marriage is older than government.

This is an absurd argument.  It is like saying no branch of the government has the authority to ban slavery because slavery is older than the government.  Card then makes some confused points about the definition of marriage.  Maybe he can be forgiven, because there have been cases where people have tried to legislate Pi as exactly 3 (if only it were that easy).  The issue is not what men and women do together, but rather the special legal status that the partner has and whether that should be extended to same-sex couples.  Can a partner inherit your wealth the same way a widow does?  Can they make important decisions about the other partner’s medical care?  etc.  These are things the state can do.  It doesn’t alter the laws of the universe, but rather establishes some power over the welfare over another person of their choosing.  Card is right in that it is not the same thing.  It is equivalent to saying that two people are equal.  This is also obviously false, no two people are exactly equal.  What we mean when we say it, is that they are equal in the eyes of the law.  In the California case, the court ruled “domestic partnerships” and “marriage” had to be on this equal legal standing.

Card then goes on to make some points about cohabitation, divorce, and out-of-wedlock births.  I would agree with Card that out-of-wedlock births and divorce are problems.  However, I don’t see the direct connection to “gay-marriage.”  Just look at the divorce rates, Massachusetts is at 47 (under Utah which is at 23), and California is at 19 and the data is old.  Nevertheless, the top state is Nevada.  Shouldn’t what is going on in that state be the focus of the ire?  Isn’t that the state that is destroying marriage, much like Arkansas, Alabama, Wyoming, and Idaho?

I would agree with Card that there are things wrong in our culture.  However, I don’t think “gay-marriage” or the “gay agenda” is the driving force behind it.  And, if push comes to shove, I would rather kids have an accurate picture of gay people than be totally ignorant.  Just like I would like kids to have accurate information about contraception than not.  I don’t think people, in general, make better decisions with less information.  If they do, it is more luck than anything else and luck is not sound public policy.  It doesn’t mean one has to approve, just like there are some people who don’t approve of eating meat, but I don’t see who is being served by ignorance.


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