Legislating Acceptance

On November 4th, 2008. the voters in California voted in favor of Proposition 8 – by a reasonably slim 52.3% to 47.7% margin – which amended the California State Constitution to include verbiage that strictly defined marriage as a union between one man and one woman.

Only marriage between a man and a woman is valid or recognized in California.

California State Constitution
SECTION 2. Article I. Sect ion 7.5

Thus Proposition 8 overruled the May 15, 2008 decision by the California Supreme Court that ruled that the previous Proposition 22 – which passed with 61.4% of the vote – violated the equal protection clause of the California Constitution. As a result Gay Marriage was once again forbidden in California.

As anyone with a brain would expect, the LGBT community and its supporters are very much up in arms over this development. There are holding protests across the whole nation and proceeding to move forward with litigation to have the constitutional amendment overruled. The LGBT community is outraged that the voters of California took their rights away twice!

One has to ask though what rights did the homosexual lose? The answer is not a single one under California law.  California recognizes both hetero- and homosexual Domestic Partnerships, which as of 2007 grant all of the same rights and responsibilities as marriages under CA state law (see California Family Code §297.5)

Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

California Family Code
SECTION 297(a)

The first thought that came to mind was that these Domestic Partnerships wouldn’t make the participants eligible for the same federal programs and protections granted to married couples. This is actually true, but is sadly irrelevant. The federal Defense of Marriage Act (DOMA), which President Bill Clinton signed into law on September 21, 1996 expressly states that the Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states. Whether married or partnered, same-sex couples are denied federal recognition.

So it comes down to language and the weight that people place on the word “Marriage.” Homosexuals weren’t interested in their rights, which weren’t in jeopardy. The outrage caused by Prop 8 is seemingly based on the gay community’s need to have the California government say that they have the “right” to say that they’re married.

Essentially the LGBT community tried to legislate and litigate acceptance and got “slapped in the face” by homophobia. They also – I hope but do not conclude unwittingly – ran afoul of Christian churches who are experiencing an increased fear of government interference.

Someday people will hopefully learn that you cannot legislate or litigate aceeptance, only enforced tolerance and equality of measurable and substansive rights under the law of the land.  It won’t be today though or next week – or next year.

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16 Responses to “Legislating Acceptance”

  1. Dracil Says:

    They didn’t lose a single right? What about the right to be treated equally?

    I really hope (but know it won’t happen) the courts find that if homosexuals can’t marry, then in order for everyone to be treated equally, ALL marriage is abolished in California, which really is the way this should go. Stop mingling the state and religion into marriage and a lot of the issue will go away.

    This issue may not even be up for amendment anyway, and require a revision, because of the above contradiction, and the process for constitutional revisions are much stricter.

    That said, in 8 years, the margin dropped from 22.8% to 4.2%. I’m confident in another 8 years, the vote will be pretty solidly in favor of gay marriage. Especially as old people continue to die and be replaced by younger voters, who are much more in favor of gay marriage.

  2. jonolan Says:

    “They didn’t lose a single right? What about the right to be treated equally?”

    Homosexuals – insofar as spousal rights are concerned – are already treated equally under the law thanks to section SECTION 297.5 of the California Family Code.

    Try to understand that the law deals with itself and with the substantive rights it grants, not people’s attitudes. Denying homosexuals “marriage” means nothing under the law when they are still being granted the same rights as “married” couples.

    People’s beliefs and attitudes are a different matter, and one that the law can’t address.

  3. John Says:

    But what is the point of making a law banning gay marraige, if it is not a matter of law? I understand that you’re coming from a legal-word point of view, but what about from a moral one? It is morally unjust to definine marraige between two humans. People are people who love people, regardless of sex. More or less, I don’t want to witness a new civil rights movement for gays and lesbians. This is mostly because I don’t want there to be a big deal made if one becomes president in 40 years.

  4. jonolan Says:


    The points – there are a couple – of creating an Amendment to the California Constitution are:

    1 – Showing the CA Supreme Court that a small group of unelected judges can’t overrule the will of the electorate. Remember, Prop 22 was voted into law, but the court overturned it. Prop 8 then overturned the court’s ruling.

    2 – Protecting the rights of religious bodies – Christian, Jewish and Muslim in this case – from inappropriate government interference. Gay marriage has been used in other states as a vehicle to attack churches’ legal status. It’s one of those admittedly stupid “slippery slope” situations.

    “It is morally unjust to define marriage between two humans.”

    That point must be held in contention and is therefor a moot argument. Morality is essentially ethics imposed by an outside body such as a society or a religion. Some parts of American society hold with your view, other parts don’t. The Abrahamic faiths’ morality and religious tenets definitely hold views in opposition to yours.

    The one bit of good news is that the homosexuals lost absolutely no legal rights due to the passing of Prop 8. For this we – any of us regardless of faith or sexual preference – should be grateful.

  5. mssc54 Says:

    Why stop at to people of the same sex being married?

    Why can’t a “bi-sexual” person marry a man AND a woman?

  6. John Says:

    Yes, you as a homosexual can rest assured that you lost no rights.

  7. jonolan Says:


    Then we would be going beyond a monogamist relationship. That opens a whole new can of worms, one that America is very much not ready to deal with.

    I wish thing were otherwise since I’m polygamous and in a permanent full-time threesome with two women, but I accept that the US isn’t ready for that to be accepted or addressed by laws.


    I’m hetero actually, but what’s your point? Or was that just a bit of bitterness spewing forth?

  8. Akira Says:

    Why does the state recognize marriages?

    Anyone can already marry anybody — or as many people as they like — any time.

    But the state, and certain groups [churches, temples, insurers, etc.] have their own standards for recognizing a marriage.

    For the state, what matters is, “What interest does the state have in recognizing, promoting, facilitating this relationship?” The state has an interest in promoting and protecting male-female monogamous relationships, for the sake of societal stability and the healthiest environment for children. It has no interest in doing the same for 2 women, 3 women + 2 men, a man + a dog, etc. etc..

    Any citizen who is not already legally married already has the right to get married right now with any other appropriate citizen who is not already legally married. Any woman can legally marry any man, regardless of each of their sexual interests.

    The “Gay Marriage” movement = An attempt to force people to recognize something that most people have no interest in.

    [Of course, the state also has no interest in non-heterosexual non-binary “domestic partnerships”]

  9. Akira Says:

    Re: Dracil: “old people continue to die and be replaced by younger voters, who are much more in favor of gay marriage.”


    – Young voters age. become wiser, become more likely to vote, and become more opposed to the state being forced to recognize gay “marriage”.

    – The average age continues to rise.

    – A youthful population is maintained by immigration from populations who are more likely to view gay “marriage” as either offensive or a joke.

    These are facts. If you don’t like reality, try opiates.

    Re: John: “It is morally unjust to definine marraige between two humans.”

    Does this mean you’ve read what the Communist Manifesto has to say about the destruction of the “bourgoise” family, and that you agree with Marx’s goal therein stated?

    Re Dracil: “What about the right to be treated equally?”

    Homosexuals can get married. Certainly both Socrates and Wilde did.

    Or do you mean that homosexual couples have a “right” to be treated equal to heterosexual couples? Where is this “right”? Is it in the US Constitution? Citation please.

    Are triads’ “rights” equally protected?

    Married siblings “rights”?

    1000 women + 500 men “marriages”?

    A woman “marrying” her adult daughter?

    Where is this “right” recorded?

    Re: Jonolan: “I’m polygamous and in a permanent full-time threesome with two women, but I accept that the US isn’t ready for that to be accepted or addressed by laws.”

    And how could it be? How could it be limited to 3. Why not 4, 5, 100, 1000, 10,000?

    The real goal is to destroy any sensible definition of marriage.

  10. jonolan Says:


    There is one glaring flaw in your logic, a flaw that is shared by the militant supporters of same-sex marriage. The state’s recognition of a union between people – and the nice piece of paperwork that they bless it with – does not make a marriage. All the state can do is recognize an existing union or fail to do so.

    Also, here are the actual views of Marx on the family:

    Abolition [Aufhebung] of the family! Even the most radical flare up at this infamous proposal of the Communists.

    On what foundation is the present family, the bourgeois family, based? On capital, on private gain. In its completely developed form, this family exists only among the bourgeoisie. But this state of things finds its complement in the practical absence of the family among the proletarians, and in public prostitution.

    The bourgeois family will vanish as a matter of course when its complement vanishes, and both will vanish with the vanishing of capital.

    — Karl Marx
    The Communist Manifesto
    Chapter 2

    I’ve got news for you – and the tormented soul of Marx – the bourgeois family is safe from harm except from itself and the proletariat absence of family has vanished as a matter of course with the rise of capital.

    I do not believe that homosexual or polygamous relationships are going to suddenly or gradually undo the fabric of society when that fabric is based on wealth and security, not on familial bonds.

    You bring up a valid point though. What is the proper interest of the state in recognizing marriages? How can it balanced between traditional values and the requirements of “Equal Protection” under the constitution?

    Personally I believe that the California Family Code governing Domestic Partnerships balanced these things quite well.

  11. Sue Says:

    A quote or two (by a Spiritual Philosopher) on killing about which you made a comment on the UNSW Socratic Club blog.

    “The negative exploitation and killing of human beings by human beings violates the heart of one and all. therefore, all should always actively participate in the positive moral rightening and cooperative pacification of “self” and of the relations between all human beings, in order to maximally avoid and prevent the negative exploitation and (outside the strict boundaries of unavoidable exercises of self-defense) the killing of human beings by human beings.”

    “The negative exploitation and killing of non-human beings by human beings violates the heart of one and all…….”

    “The negative exploitation, and progressive degradation, and potential destruction of the fundamental order of the natural environment on which all Earth-life depends violates the heart and directly threatens the life of one and all…….”.

    “The positive moral rightening of ALL human activity would, if everywhere exercised, become the universal demonstration of a right and true human disposition, that altogether and in general, “self”-disciplines the tendency to physically, socially, culturally, and environmentally “toxify”, harm, and altogether, negatively affect the human and natural world (by not only physical means, but, altogether, by bodily, mental, verbal, emotional, and generally psychic, or psychological, and even every kind of energy-manipulating means)”.

    End of quotes.

    Altogether then I would say that the GOP actively promotes and celebrates everything that is explicitly and implicitly criticised in these quotes.

  12. jonolan Says:

    Somewhat off-topic to this post, Sue – but that’s OK.

    The quotes you cited are wonderful for the classroom, but have only minimal functional relevance to the greater world due to their inability to be put into action without the mass consent of humanity as a whole.

    1 – All “exploitation,” use or trade will be considered negative by someone. There is no consensus on the qualifier of “negative.”

    2 – Self-Defense is arguably not limited to immediate threat. One has to balance the perceived threat against the effects of a proactive or preemptive response. In other words it’s best to stop a group of madmen with bombs before they’ve blown up a kindergarten or hospital.

    There is nothing within those quotes that the GOP – and just about everyone else – doesn’t hope for, but the GOP is responsible and practical enough not to compromise the safety and security of America by irresponsibly acting in a manner to achieve these goals.

    Various Utopian philosophies are wonderful and needful for human growth, but they can only function as a softly guiding set of principles. When one enters into the unprotected aspects of life it becomes necessary to take a more utilitarian approach to such things – at least if one has responsibility for more than just ones’ self.

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  15. J.D.F Says:

    jonolan, I appreciate your well written piece. Though I disagree with the outcome or why Prop 8 caused such a furor, you have stated your case very well. I personally think there should be one civil marriage contract for all people and let religion sort out their own with their own. 🙂

  16. jonolan Says:

    J.D.F., we agree on what the best case scenario should be. Amazing, that topic was the very first post I did on Reflections From A Murky Pond.

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