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The Rule of Law

Parshat Yitro

Exodus   18:1-20:23


This week the rule of law won out.  The release of the decision of the 9th Circuit Court of Appeals to overturn Proposition 8 by a vote of 2-1 reaffirmed that justice and legal logic have a place in our society and our world.   Writing for the majority Judge Stephen Rheinholdt stated eloquently:


“Proposition 8 serves no purpose and has no effect, other than to lessen the status and human dignityof gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite -sex couples.  


“By withdrawing the availability of the recognized designation of ‘marriage’  Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.”


This decision by the 9th Circuit correctly framed the core issue that made Proposition 8 so heinous that it took away fundamental rights that were found to be in our State Constitution.   The rights found there by the state Supreme Court –through the rule of law-was that gay and lesbian couples had the right to marry.  The voters took away that right.  And in America we don’t take rights away we grant and find the human and civil rights of people.  In fact this was one of the few times in United States history where civil rights were taken away once granted!


The battle for marriage equality is far from over in California and around the nation.  Washington State, Maryland, New Jersey are involved in campaigns and legislation to grant the right to marry for gay men and lesbians.  While North Carolina, Minnesota and New Hampshire are involved in fighting amendments forbidding marriage equality or fighting initiatives to repeal marriage equality where it has been already granted. 


Of course at the federal level, the Defense of Marriage Act (DOMA) represents a serious threat to gay couples in every state regardless of whether they are in a recognized marriage or domestic partnership.  And the negative effects of DOMA on a couples’ livelihood and civil rights and their families across the country is huge.  And takes a tremendous toll.


For those gay men and lesbian who are single these areas of discrimination also do tremendous damage to our humanity and civil rights.  The real message that is underlying here is that gay men and lesbians are not fully human since society doesn’t recognize their capacity to love and form relationships with civil sanction.   Whether you choose to marry or find a partner is irrelevant.  The attack on gay men and lesbians is evident from the denial of the potential to be fully counted as part of the human family!


Thank goodness for the clarity of the decision handed down by the 9th Circuit.  There are those that have already denounced this decision as “judicial activism”.  But this isn’t the case.  Those cries come from the sore losers who continue to try and push gay and lesbian people into a less than human category.  This court decision is a narrowly defined, stick to the facts decision. 


How wonderful and ironic that this decision comes during the week that we read Parshat Yitro!  This is the week that the Jewish people stand at the foot of Mt. Sinai and receive the Ten Commandments as the basis of our legal system.  So too, this week, Moses’ father in law, Yitro, instructs Moses to set up a system of courts and judges that will help him adjudicate cases.  Our Torah sketches out some of the earliest systems of the rule law that will help transform a group of slaves into a nation.  The Israelite people had been treated as if they weren’t human beings, as chattel, and degraded.  They weren’t allowed to marry in Egypt  nd their families weren’t respected.   But with the liberation from Egypt and the giving of the law, we became in our own eyes a nation of priests and a holy people! 
The rule of law matters and justice and dignity for all people were a powerful point of the giving of the Ten Commandments.


So too in our own day, we can experience a bit of the pride and dignity and assertion of our humanity when the courts elevate the human rights of all its citizens.  


The case for fully overturning Proposition 8 is not yet over.  It will no doubt be appealed to either en banc of the 9th Circuit Court of Appeals-to be heard by 11 judges and/or to the Supreme Court of the United States (where we have seen previously politics intervene in the rule of law). But just for a moment this week, we should rejoice and celebrate the results of the decision and the beautiful and elegant way it affirmed the civil rights of gay men and lesbians in our State.