Wednesday, July 30, 2008

Prop. 8 Watch: Jerry Brown Edition

Ah, Jerry Brown.

Brown has apparently decided that the upcoming voter information pamphlet will officially describe proposition 8 as a measure to "eliminate the right of same-sex couples to marry." The fact that this is an accurate description has not prevented proposition supporters from protesting on the grounds that it's too loaded. After all, who wants to take away people's rights? (I mean, besides supporters of proposition 8.)

The courts may very well decide that the wording in the pamphlet needs to be changed, but I think a bigger problem is that the arguments against the measure have TOO MANY CAPITAL LETTERS. Learn to use italics, people.


Bret said...

I'm guessing Jerry expects to generate a few headlines out of that and then accept that he needs to tone it down. Marriage is never a 'right', subject to any kind of acceptance or modification by the state; it's simply a private ceremony.

Sure, the government unwisely regulates the process, but two wrongs don't make a right.

Paul said...

I mean, there are different kinds of right. Right now, homosexual couples have a legal right to marry in California. That right is clearly subject to "acceptance or modification" by the state. Prop. 8 would eliminate that right.

I don't see anything peculiar about describing the current state of affairs that way.

Bret said...

The problem that I have with 'the legal right to marry' is that presently in American jurisprudence, that right is a very positivist thing.

First everyone had the right to marry, then Judge Ezra said gays were included, then everyone passed a law saying 'no more right', -then- some people passed a law saying 'wait, actually yes', and now we all act like the fragility of that is somehow legitimate, because the state is so deeply involved.

Frankly, I think that's BS. Marriage is a private matter that the state has no business regulating. Of course, the law is the law, and if I try to marry my dog and claim a tax credit, men with guns will come to my house etcetera. That's one thing. But the moral imperative is quite another.

Tommaso Sciortino said...

Look, obviously you have a very specific view about how the word "right" should be defined. Your definition is a very good one and is very useful within the context of your political beliefs.

Be that as it may the general populace uses the word "right" simply to mean "freedom" or "ability" or "legal OKitude". With that in mind what Paul is saying isn't really off the wall.

To avoid confusion in the future Bret, why don't we use the word "fundamental right" to describe the kind of rights your talking about.

Paul said...

It's all well and good to say that marriage is a strictly private matter, but until you figure out how to arrange one for yourself on purely private terms I think it's a dubious claim. Negotiating contractually something like hospital visitation rights is precisely the kind of thing that is almost impossible to do without the government getting involved.

But I think hospital visitation rights are a good thing.

Bret said...

@Tom, I'd normally agree with you that it's a semantic distinction and therefore unimportant between friends. However, the entire issue is about semantics: Jerry Brown chose those words, and the grounds by which one might force their modification go to the heart of what Californians consider 'rights' to be.

Are they things the State can grant and then strip away by calling a vote? Does a ballot initiative count as the Due Process of Law by which your rights can be taken away?

@Paul, I can't figure out what your point is.

Paul said...

My point is that it's not clear how marriage could be a strictly private matter. Some things are easily negotiated by private parties, but other things are not. Marriage, as it currently exists, includes several arrangements that would be difficult, if not impossible, to arrange on a strictly private basis.

Since I think those arrangements are good ones to make available, I think government should be involved in regulating marriage.

Bret said...

Paul, what included arrangements are those?

Paul said...

Well, I already listed hospital visitation rights as an example.

The thing to do, I think is to look at this list of marriage rights and responsibilities, and then identify any rights that involve 3rd parties, especially non-specific 3rd parties. How would such agreements be arranged in the absence of government intervention?

So, for instance, with hospital visitation rights, on purely private terms, A & B couldn't create a contract that obligated a 3rd party (in this case, a hospital) to allow B to visit A. So the government's stepped in and said that hospitals have to honor these marriage contracts even though they aren't actual signatories to the agreement.

Other rights that jump out at me as difficult to do without government intervention: joint filing of bankruptcy, next-of-kin status for emergency medical decisions, and access to children's school records.

(It's also worth noting, as a more abstract point, that the government regulates all kinds of contracts anyway - either by dictating what can and cannot be contractually agreed to, or by enforcing existing contracts - so it's not clear what the special distinction would be to make marriage in particular unacceptable. If contracts were really a "purely private matter", then you wouldn't have much justification to take a broken contract to court, or to complain that you'd been forced to sign under duress, etc.)

Bret said...

Clearly it's a knottier problem than I was aware. I still think it's highly awkward that the government will send you and require of you boatloads of money simply because you've signed a document with someone of the opposite gender.

As far as the hospital visitation thing, I'm not a doctor, but I think it's awfully sad that you need a law forcing the hospital to let your spouse visit you.

These things aside, here is the funniest item from Pauls' Wikipedia list:

"Spouse's flower sales count towards meeting the eligibility for Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act"