Some topics are milked far too much. Proposition 8 is one of them. With so many arguments and retorts, one would think that the cow’s udders have no juice left. And he would be correct. To save the cow from exhaustion, let’s stop milking and make some butter.
Homosexual relationships are as intimate and loving, as intertwined with jealousy and rancor, as shallow and as sophisticated as any other heterosexual relationship. To assume that compassionate intimacy is bound by sexual orientation, or that benign, familial relationships can’t be established in certain households, is to milk the chicken and collect the eggs from the cow. However, to assume that the state needs to formally recognize such intimacy is also missing the mark.
The state is obligated to enforce fundamental rights, but not all interests or passions should automatically be rendered as fundamental. Fundamental rights are those that are so intrinsic to personal autonomy that to deny them would be to extensively hinder one’s well-being. The Supreme Court in the Washington v. Glucksberg case declared that “the utmost care” needs to be taken to establish fundamental rights because “extending constitutional protection to an asserted right or liberty … to a great extent, place[s] the matter outside the arena of public debate and legislative action.” In essence, an issue then becomes moot and outside the democratic arena.
In the case of Proposition 8, do homosexuals have a fundamental right to state recognized marriage? The answer is nuanced because the question has two components. One: do same-sex couples have a fundamental right to the benefits states provide to married heterosexuals? Two: do same-sex couples have a fundamental right to be recognized by states under the name of marriage?
For the former, to deny benefits or privileges that are available to married couples because an intimate relationship is nontraditional would grossly violate the essence of the equal protection clause of the 14th Amendment. The government cannot allocate resources or provide privileges based on criteria that discriminate certain demographics by making them eligible for the benefits only after they forsake fundamental aspects of their identity. However, same-sex couples don’t have a fundamental right to drape their intimate unions with the state-recognized semantics of marriage. Those semantics are a by-product of the marital social institution and can only be regulated by the consciousness of the majority of people.
In California, homosexual couples, registered as domestic partners, are afforded all the rights the state makes eligible to married couples. The statute in the California family code is explicit and states that “registered domestic partners shall have the same rights, protections and benefits … as are granted to and imposed upon spouses.” Since the state provides an avenue for same-sex couples to share the benefits enjoyed by their heterosexual counterparts, the state has met its obligation of securing the gay communities’ fundamental right of equal protection.
To move further and annul the majority sentiment by granting same-sex couples access to the semantics of marriage would violate the obligations of the state as a republic. In 2000 and in 2008, Californians voted to keep marriage only between a man and a woman. Their decision did not mitigate the rights afforded to same-sex couples in a domestic partnership, nor did it increase the rights afforded to married heterosexual couples. It mainly denied the state from conferring the name of marriage onto same-sex couples. As a social institution vested in tradition, the regulations of the semantics of marriage is a prerogative of the majority of Californians. The rights of the electorate would be denied if their voices were silenced through judicial activism.
The issue doesn’t belong in the courts, it belongs back on the street. As long as marriage confers no additional rights that alternate avenues cannot bestow, its definition belongs to the will of the majority. To incorporate same-sex couples under the umbrella of marriage, the gay grassroots movement needs to continue its work in evolving accepted social norms. Once they have convinced a majority, initiate a proposition and have the people decide.