Fundamental rights, one more time - can two fathers marry their two sons?

I've previously blogged about this on October 25, 2008 and December 23, 2008, and it's time to revisit it.

As you may know, California's Proposition 8 is being challenged in the California courts, and a hearing will be held on March 5, 2009. One of the arguments against the proposition is worded as follows:

Proposition 8 Is An Ultra Vires Amendment Because It Abrogates Fundamental Rights Protected By Article I, Section 1 Of The California Constitution Without A Compelling Justification.

There are those words "fundamental rights" again. For the record, here is how Article I, Section 1 of the California Constitution reads:

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS

SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

Note that this states that all people may pursue happiness - not just all straight people, and presumably the 2008 decision of the California Supreme Court is based upon this idea that "all people...have inalienable rights...[for] pursuing...happiness."

Um...all people?

On February 23, Randy Thomas linked to an MSNBC article by Kathleen Lewis. The title of the article? "I have two husbands."

...My first husband was Alan.

We fell together like a couple of old shoes, somehow instantly comfortable with each other. We had similar opinions about plural relationships, and neither of us was averse to the idea. Around a year and a half after we were married, we met Eric. He and I were instantly attracted to each other and, as Alan had no objection, we began getting to know each other better. Over time, I found myself falling in love with Eric. Alan certainly wasn't blind to this, so we all got together to discuss it. This turned out to be one of the most important conversations of my life, and led to an increase in my family’s size.

Alan and Eric let me make the sleeping arrangements, and I worked to make sure I spent time with both of them. To all outward appearances we were a married couple with a male friend living with us. While some found it awkward when the three of us occasionally attended parties and such together, very few people attempted to pry. To avoid legal troubles, I remained legally married to Alan, and we all decided a larger house was in order when we met Leslie.

Fast forward to today, and our family is now composed of Alan, Eric, Leslie, Amber, and myself, plus our children: Todd, Steve, Jennifer, Lisa, and Amber is currently pregnant.

The MSNBC article goes on to describe the logistics of the marriage, and then criticizes the restricted worldview of "Big Love":

When ‘Big Love’ came out, we all thought it was pretty silly. To start with, we all consider ourselves to be one family, not three separate but connected families. The ideas that plural marriage is restricted to the one man and several wives model — and that it has to have a religious basis — are both ridiculous. We also don't consider the political jockeying, the backbiting, and the attempts to get more of the husband's attention or money, to be loving behavior.

Lewis then concludes:

With all the traditions we have coming from other cultures and various parts of the country, who's to say what is or isn't mainstream? Kind of makes "non-traditional" lose its meaning.

So presumably this family has a fundamental right to be recognized as such in the state of California. And anyone who disagrees is an oppressor.

But let's take this a step further. What if the two dads - Alan and Eric - decide that they want to marry a couple of the children - let's say Todd and Steve?

After all, why not? It's not like Leviticus 18 has any binding force in the state of California. And anyone who would try to apply Leviticus 18:6 and the rest would be extremely insensitive. Take Barney Frank:

"Mr. Warren compared same-sex couples to incest. I found that deeply offensive and unfair."

Or, in other words, Barney Frank is displaying his hateful attitude toward people who, in the words of the California Constitution, "have inalienable rights...[for] pursuing...happiness." Sounds like a fundamental right to me. You know, if people would just be accepting and not be such haters, Michael Jackson might still be living in Neverland today.

But let's go back to Randy Thomas, who has a different view:

Because I am a Christian I believe a family should be a Husband and Wife coming together as one. Both Husband and Wife have very specific, wonderful roles and responsibilities that complement each other. The blessing of their unique gender roles and giftings add to a level of healthy interdependency that helps both become more together than they would ever have been alone. They don’t mirror each other in bland “gender neutral” definitions. They celebrate each other’s equal capacity to bear the Image of God uniquely as well as when they bear His Image together. Their union is transcendent in that it bears the Image of God in a way that no other union can. If the Lord chooses to allow them to have children or adopt … great! The family increases to Gramps, Gramma, Mom, Dad … Punkin’ and Dot! And of course it goes without saying … uncles, aunts … cousins. I believe that God created that to be His ideal “version” of family so, I am biased.

Thomas concluded his post as follows:

My question is this, do same sex couples condone polyamorous/polygamous relationships? I will offer my view (from my past experience and current ear to the ground) either in the comments below or in a follow up post. But I want to give you all some time to respond too. Don’t be shy :). Oh and I hope that there may be other things in this post you might want to chime in on so … go for it.

As I write this Thomas has only received one comment to his post, but a spirited discussion has broken out in this FriendFeed thread. In the conversation, Mark Trapp pointed out how the California Supreme Court may evaluate different proposals to limit marriage:

The ruling also provides two standards by which the state must determine any (not just same-sex marriages) marriage validity: "Under the strict scrutiny standard, unlike the rational basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary to serve that compelling state interest."

Of course, it all depends upon what the compelling state interest is. For example, if the compelling interest is to encourage procreation, then gay marriages may not be valid, but marriages of eight teenagers who have hit puberty may be valid. After all, as I've noted before, marriages of young people existed well before the California Constitution was written. If, on the other hand, the compelling interest is to create stable relationships, then the only valid marriages may be ones in which people have certain beliefs opposing divorce, and in which the married participants have income levels that lend themselves to stable relationships (not too poor, not too rich, but just right).

This will be an interesting ruling when it comes out.

P.S. If you have comments specific to polygamy and polyamory and whatever other poly- word you can conceive of, you may want to enter your comments into Randy's post directly.

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