Judge Vaughn Wagner’s groundbreaking decision overturning California’s Proposition 8 was more than a detailed takedown of each of the arguments against marriage equality. It also illuminates the fact that marriage is a constantly evolving institution, and that it has evolved rapidly over the past several decades as old gender roles have been replaced with a larger sense of gender equity.
Linda Greenhouse has a great piece in the New York Times this week that talks about how Judge Vaughn’s analysis of the change in gender roles shows that he is not redefining marriage from the bench- society has already done it. By adopting ideas such as no-fault divorce and abandoning the idea that women could not individually own property, Judge Vaughn argues that we as a society have already moved marriage away from its “traditional” role so treasured by Prop 8’s supporters.
What does this decision have to do with reproductive rights though? Plenty. Over at RH Reality Check, Jessica Arons illuminates the connections. The underlying tone of Judge Walker’s decision is that the state has no compelling interest in telling people who to marry. In doing so, he cites Loving v. Virginia, which declared unconstitutional laws that prevented people not of the same race from marrying; Griswold v. Connecticut, which established the right of married couples to seek out birth control; and Lawrence v. Texas, which decriminalized consensual sodomy. Taken with the Prop 8 decision, connecting these dots has a huge impact on reproductive freedom. Being able to choose who you want to marry or have sex with, and if and when you want to have children, are fundamental rights. Our laws should reflect that the personal sovereignty that is the bedrock of American values.
The argument over Proposition 8 hits at the intersection where certain individuals have their behavior controlled by the state, for supposedly moral reasons held by the minority of Americans. It’s a fight that those in the civil rights, LGBTQ and reproductive justice communities are well acquainted with. When decisions like Perry v. Schwarzenegger come along, we can all rejoice at the victory for individual rights. And the backlash against it reminds us that there is still more work to be done.