Postmodernity and Prop 8

yes-on-prop-8I was watching a bit of the live coverage from the California Supreme Court hearings to overturn Prop 8. For those of you who aren’t aware of what Prop 8 is, first you need to move out from under your rock, and second, it was the ballot measure passed this past November restricting the definition of “marriage” to strictly heterosexual couples. The big deal was that the courts had already ruled in a previous case opening the doors for homosexual couples to be granted marriage licenses by the state. Since then there have been numerous protests and riots and things of that sort. The California Supreme Court began hearing oral argument today in a lawsuit challenging the proposition’s validity and constitutionality. carried a live feed of the argument throughout the day and I would assume would continue to do so until the case is resolved. I’ve never actually watched a Supreme Court hearing in its entirety. From what I saw today its nothing like all of the courtroom drama shows would have you to believe. But I suppose this is a different type of hearing than your typical Law & Order.

During the short period I was able to catch the argument, I noticed that several times Associate Justice Kennard brought up the issue of what exactly the definition of an “inalienable right” was. Part of the argument on behalf of overturning the measures of Prop 8 was that it denied an “inalienable right” to the homosexual community and thus was not constitutional. The problem comes, however, when you also acknowledge, as Justice Kennard and others did, that it is a fundamental right of the people of the state of California to enact a ballot measure, and that ballot measure’s decision will become law if the majority of voters approves the measure. So here we have the problem: Who’s “inalienable right” is right?

I was thinking through the whole idea of “inalienable rights” as the argument was going on. Several times the bench sought a clear definition of these rights, but neither side could provide a definition that seemed to satisfy the court. Part of the problem I believe is that we are living in a society that now holds to the concept that there are no moral absolutes. The postmodern society we live in, in theory, should allow that one man practice heterosexuality while another man practices homosexuality, and the two should be free to do so without condemnation as long as one does not intrude upon the other’s concept of right. The real problem comes when we bring the politics of these issues into play, when one man’s homosexual behavior becomes a matter of governmental policy. 

The concept of “inalienable rights” cannot be valid in our postmodern society. The concept calls upon a higher authority than man, some greater standard that is above one man’s beliefs, a moral standard of sorts blanketing all actions of men and judging them as either right or wrong based upon how they impact those around them. Increasingly any concept of a higher standard among society is dwindling, and the common belief in any godhead or deity is no more. “We the People” is the new standard, but “We the People” is a splintered, broken, divided mess that cannot come together over the simple things, let alone the issue or who decides who can be happy, who can marry, who can love. We are left with moral ambiguities, a shadow of some higher calling that we refuse to acknowledge, in so far as it infringes upon our “right” to do as we please. And in these moral ambiguities lies the problem with Proposition 8. When we have eroded the higher standard, we eroded the philosophical basis of our government and our democracy. We were a nation founded on the merging of Judeo-Christian values and Enlightened humanistic ideals. The problem is that the Judeo-Christian values have gone one direction, and the Enlightened humanistic ideals have gone another. And our Constitution is stretching to the point of breaking between them. 

Personally, I am torn over the issue. I personally feel that it is unconstitutional the restrict the rights of any group to marry, regardless of what the cultural norm may say. However, I also feel that it is the explicit right of the people to pass measures they see fit. But the two are in direct conflict here. We’ll see how the Supreme Court rules, but however it does I have a feeling that the issue is no where near resolved.

If you want to read more, this is a good article from Time about today’s hearings

Gay Marriage: Is California’s Supreme Court Shifting?

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