Proposition 8 and Discrimination:
Marriage on Trial at the Supreme Court
Proposition 8 does not, contrary to Judge Vaughan Walker's claims,
treat equals unequally.
In November 2008, after a contentious political battle, the voters of California approved an amendment to their state constitution restoring their historic definition of marriage. "Only marriage between a man and a woman is valid and recognized in California," read Proposition 8, California's Marriage Protection Act.
A populist response to a California supreme court decision redefining marriage to include same-sex relationships, Prop 8 merely codified (like similar statutes adopted by nearly thirty states) what had always been the case in custom and practice in California--marriage is between a man and a woman.
The one-sentence amendment was meant simply to protect the definition of marriage from social (and judicial) revisionists. It was challenged in Perry v. Schwarzenegger, where plaintiffs Kristen Perry and Sandra Stier claimed they were denied a marriage license based on their sex and sexual orientation.
US District Court Judge Vaughn Walker agreed: "Perry is prohibited from marrying Stier, a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry's choice of marital partner because of her sex."
Walker upended Prop 8 in August 2010, claiming that it "singl[es] out gay men and lesbians for denial of a marriage license," thus preventing the state "from fulfilling its obligation to provide marriages on an equal basis." He reasoned:
The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples . . . Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
At the heart of Perry, and the issue now before the Supreme Court, is whether or not marriage is discriminatory. Does Prop 8 unfairly discriminate against gays and lesbians, as Walker claimed, by denying them marriage licenses?
First, it's worth asking what it means to discriminate. Is it always wrong to discriminate?
We have to admit that discrimination is part of daily life. Most of our decisions involve discriminating choices--from the food we eat, to the shops we patronize, to the movies we watch. A loving mother who forbids her children from watching certain television shows discriminates against those shows. A concerned father who refuses to let his daughter date certain shiftless young men discriminates against those men. Discrimination is a daily exercise that can serve us well if practiced well. In an Aristotelian sense, it is a virtue, the sharpening of which assists human flourishing.
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