A Jeanne Site
California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: February 26, 2000
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Summary and Text of Proposition 22
Governor's Position on Proposition 22
Argument in Favor of Proposition 22
Rebuttal to Argument in Favor of Proposition 22
Argument Against Proposition 22
Rebuttal to Argument Against Proposition 22
The Equal Rights Amendment
On Thursday, February 24, 2000, we spoke in the Women and Crime discussion group of Proposition 22 in California's March 7 election. This Proposition states: "Only marriage between a man and a woman is valid or recognized in California." Looks simple; but it's not. In large part that is because of unstated assumptions. This proposition is well-suited to our discussions on Women and Crime because it has called into attention structural violence, family values, issues of law, morality, and social change, and it intersects with the issue of women being treated as second-class citizens. Not all these issues appear in the documents our State has published for your voting convenience, and which are linked above. But the larger issue of how, without specific intent, we enact structurally violent rules, is an important one, especially since women often bear the brunt of such legislation.
Unstated Assumptions and the Law
This proposition would add 14 words to the Family Code, section 308.5 that: "only marriage between a man and a woman is valid or recognized in California."
Proponents argue that this is simple, straight forward, that there simply are no hidden agendae. Opponents argue that there are hidden agendae. The purpose of this threaded discussion is to give you some sense of how to develop and understand arguments based on law, for you will often need to understand such issues in the coming decades.
First let's look at the actual text proposed for the law, and see if we can be clear on the definitions.
What do you suppose "only" means? "Only" suggests to me that there are somewhere other kinds of marriage, and that they are being excluded from this definition. That assumption is not stated, yet if it were not for such an assumption, why would we need the word "only?" Martha Minow would say that this is one of the kind of unstated assumptions that often lie beneath the plain words of the law.
When such an idea is implied, but not stated, one cannot be sure of the intent, one cannot be sure we understand each other clearly. Since listening in good faith to all validity claims means making a sincere effort to understand each other, we need to communicate as clearly as we can. Minow, as well as Jonathan Lear, as well as most other thinkers and lawyers and philosophers I know of, say that all we can do to make communication for public discourse free of the hidden assumptions is to bring them to awareness, to state them, to talk about them, as part of that public discourse.
- "man" and "woman"
At this point, for purposes of comparison, I would like you to go back and take a look at the Equal Rights Amendment (ERA). This was another piece of legislation that put an emotionally charged issue on the ballot, and with few words. The Equal Rights Amendment says that: "Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex." 23 words.
In the ERA the word "sex" was used instead of "man" and "woman." And oponents of the ERA insisted that if the Amendment passed, the few protections given to women by law would not be possible to maintain, laws for example, that had been enacted to prevent factories from exploiting women with excessive overtime. If we need laws to prevent exploitation of workers, we should write such laws about workers, not bring those issues into equality. No matter, even feminists could not decide whether equality meant be treated "the same" or "according to our needs, different as they may be." These issues are still not resolved, perhaps because there are no answers. These are the tensions with which we as humans must deal as we try to balance our roles between individual realization of rights and achievements, and societal and common rights and achievements.
Issues that came up intuitively in our discussion:
- Isn't This About Boundaries?
If boundaries are the issue, then we should say so. We should not have to guess that boundaries are meant, though not alluded to. Nothing about boundaries is said in the Defense of Marriage Initiative. What boundaries? And here comes that little word, "only," again. Is "only" a boundary we choose to draw? If it is, why doesn't the initiative clearly say so? How can we be clear on what boundaries are meant when none are mentioned? Don't we have to fall back on our own perceptions of what this is about? And how can we have any idea whether my conception of what it's about matches your conception of what it's about? Is this how we want to vote on important issues?
Yes, we do need boundaries. Even Confucius spoke of the problem with stating a law. As soon as you state it, there are always those who must go right up to the line you've drawn, not cross over it, but hover just near, to see how you will handle that. Confucius said teach good behavior by modelling, not be stating laws. And that was a long, long time ago, folks! Boundaries just tempt some people like attractive nuisances. But do we want our laws to play at that game? Are those the "boundaries" we meant in our discussions? I think not. So now we have to go back and think on boundaries, and if that is what we wish to define, we need to clearly say that to each other.
Part of this boundary issue was the concern that if we allow gay marriage, then what's next? Read the Initiative. Voting No on this proposition doesn't have anything to do with gay marriage. It has to do with excluding people, any people who don't fit "a man and a woman." But the greatest problems for women and children have never been centered around "a man and a woman." They've mostly been centered around "a violent man and a woman." We call that domestic violence. And this initiative doesn't in any way attempt to exclude violent men from the sanctity of marriage. If we're going to start exluding people from the sanctity of marriage, why don't we consider excluding violence? Perhaps this will begin to give you some idea of the complexity of words.
Just for the RECORD. NO. I am absolutely NOT suggesting that we write a law that only a non-violent man and a non-violent woman be permitted the sanctity of marriage. I am trying to make you see how hard it is to write laws without losing sight of your priorities, and without harming people in the process, even when you don't mean to.
- Where do we draw boundaries?
I don't know. No one knows. But I certainly want us to discuss thoroughly and in good faith the issue of boundaries. I don't want it slipped into a law that appears to have no connection to boundaries. And I certainly don't want to be insured that there is no hidden agenda here, even though I suspect that the 20 year-old woman who assured us of that in Argument in Favor of Proposition 22
was sincere. She probably did not see the underlying connotations of "only" and "a man and a woman" that I see. I worry that when you visit someone in a hospital, and they are very sick, they ask if you are a family member. What if the hospital clerk or nurse decides that you must be a sister, a brother, or a spouse to qualify? Couldn't that exclude someone? Couldn't that harm someone, who very much needs to be with his/her friend? When definitions are left vague, it is often a clerk who gets to specify them. And in times of crisis, we often do not have the extra stamina to cope with such barriers.
My mother died, while I sat for at least a half hour outside the Intensive Care Unit, begging to be let in. A medical assistant told me I couldn't come in because there was a crisis. They would not tell me what the crisis was. They would not let me speak. They rushed back to the crisis. My mother was that crisis! They let me in after she died. Then, and only then, the clerk asked my name. Several nurses had been trying to reach me. Believe me, I know how "only" can be translated and defined.
Yes, there should be limits. But who shall draw them, when and how, and do we want them defined by impersonal law that treats us all alike? as fungible consumers, predictable by the categories in which we can be visibly or easily placed by answering simplistic questions proffered by someone who neither knows us nor cares?
- What About the People Who Would Benefit by the Law and Don't Deserve To?
There will always be those who lie, cheat, and steal. Humans do not have a corner on the morality market. Even good people lapse into misbehavior occasionally. that is why we need forgiveness. But when we pass a law to "catch or trip up the 'bad guys'," we harm those who have a legitimate reason for their behavior. That is structural violence. That means that we have made a policy choice that punishing those with whom we are angry, and whose motives we suspect, is more important than respecting the human rights of all of us. The criminal law of the United States is based on the policy that we would prefer to let 10 guilty persons go free in order to avoid punishing 1 innocent person. Unwarranted punishment, unwarranted blaming have lasting effects throughout our lives. Most of us remember those occasions on which this happened to us.
Today's atmosphere of punishment and supervision, of suspecting each other, creates a climate of stress, sometimes even terror. If punishment is our goal, then we should be up front and clear about it. We should not slip that which punishes and harms by in the guise that it will do no such harm. Ethically we are bound to good faith in public discourse. Good faith requires that we be honest in our arguments.
- Retribution and Punishment Reflected in Value Laden Terms
One important task in deciding what unstated assumptions underlie our proposed laws is that of determining the extent to which the authors appear to be offering the emotion of rhetoric rather than reasoned argument. Look for emotionally intense words, for accusations, for repetitions with vehemence, rather than argument.
References: Minow, Martha, Making All the Difference: Inclusion and Exclusion in American Law.
Martha Minow's book is an excellent guide to the dilemma of legislating morality and caring through the law, and the problems that entails. My students like this book; it reads well. jeanne