Then I discovered http://prop8trialtracker.com/ which not only had in-depth commentary on the decision, but also a link to the entire 100+ pages of the decision. Reading this (the analysis and some of the decision) was much more comforting. The legal decision clearly recognized that the pro Prop 8 side was arguing for a view of marriage as an institution "to promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation" and that "the state’s interest in marriage is procreative".
In essence, the old catholic view that children are the reason for marriage and that by regulating marriage society and the state are issuing "parenting licenses" to ensure that children are taken care of and become good citizens. On the negative side, the ideas of "bastards" and "lving in sin" were society's way of discouraging freelance parenting.
Reliable contraception decoupled having sex from having children, and in doing so decoupled marriage from having children. Couples could have children or not, and marriage became more about their commitment to each other.
The ruling recognizes this fundamental shift in society and clearly states that marriage descrimination on the basis of gender doesn't work any more-since marriage isn't about having babies, it doesn't have to be restricted to couples who (normally in times past) could have babies. It is now available to all in committed relationships. Or as the judge put it:
"The evidence shows that the tradition of restricting an individual’s choice of spouse based on gender does not rationally further a state interest despite its “ancient lineage.” Instead,the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. See FF 26-27. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. FF 32. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life."
This is the message that people need to hear about the decision, that society had changed and that institutions must now change with it.
At one time schooling meant segregation, until the courts ruled it meant integration.
At one time voting meant men only, until the vote was obtained for women.
At one time marriage meant a man and woman coming together to raise children, now it means something else.
While everyone else ceebrates, I still have two thoughts on my mind:
- Why still sex? Since the key reason for marriage is no longer to have children, why is sex still the defining characteristic? Lack of consummation is still grounds for annulment in many jurisdictions. Why should it be? Since the anti-Prop 8 side said it is about love and commitment, why can't people who love each other, but don't have a sexual relationship marry? Why should sex, gay or straight, be the ticket to public recognition? Why can't they have the same legal benefits and recognition of their committment to each other?
- Why still two? As the ruling above notes, the gender difference is no longer valid, given the new understanding of marriage, so why should the number of partners remain? Folks wishing to live in some sort of loving and committed plural relationship should be able to do so with public recognition.Arguments to the contrary are based on the same appeals to antiquity and fear and those of the pro-Prop 8 side.