Sunday, November 23, 2008

Is Proposition 8 Un-American?

I received a private email the other day asking the following:

"…I’m not a really deep thinker in the mold of you, and (Goldwater's Ghost). But, every now and then the old noggin does make an attempt to makes sense of certain things. That latest “thing” is the recent vote in California on Proposition 8.
It finally hit me as to why I was against its passage. My reasoning is that it is quite “un-American”. How’s that? Well, as you are well aware, the US is a republic and not a democracy. In a republic, the minority viewpoint is considered such that we can’t have a vote in which 51% of the people vote in favor of enslaving the other 49%. I believe this is the classic example always put forth for this argument.
Well, in the state of CA, we just had a vote in which 52% voted to “enslave” the other 48%. Yes, this is an example of the mob rule of a direct democracy. It is quite “un-American”!
Your thoughts?"

This is a very good question on a number of levels, and so I'll take it on in little bite sized chunks. Bottom line up front: what the people of California did was not just NOT un-American, it was entirely American.

1. Let's start with my view of gay marriage in general. As I've said in the past, I'm not in favor of straight marriage, so my opposition to gay marriage is entirely consistent. What do I mean by this? I mean state sanction of marriage. I think marriage is a wonderful social/cultural/religious institution and it ought to be just that. Take the state out of it and I'd be all for both gay and straight marriage. Leave existing contract law to cover the relationship between the parties and we have our winner. Now that that is out of the way, on to the specifics of this issue.

2. "The US is a republic and not a democracy. In a republic, the minority viewpoint is considered such that we can’t have a vote in which 51% of the people vote in favor of enslaving the other 49%" There’s a lot here to deconstruct so let’s get started.

  • This view of what a republic is and mine are different. My view of a republic is one in which people vote for other people who then represent their interests--rather than in straight out democracy in which people vote directly for themselves. Being a republic is in no way an impediment to a majority enslaving a minority.
  • The Bill of Rights is definitely an impediment to the majority voting a majority out of its rights, rights thought to be so essential to liberty as to require codification in the Constitution. As such, it is often seen as the chief enforcer of the “no enslavement” stuff within our system of government.
  • There is a really romantic notion afoot that our system is designed to protect the rights of the minority. This is true, but only to a point. Let us never forget that our Constitution has provisions for its alteration. A determined majority could remove any and all rights from a minority. It would just be very, very difficult to do so.

3. So now, let’s talk about some of the specifics of the California issue, and whether it was “un-American”

  • Is defining marriage as between a man and a woman “enslavement” of a minority? No, not by a long shot. We have laws on the books that prohibit teens from drinking, we have laws on the books that allow businesses to charge different prices to seniors. Whole classes of people are impacted by these laws, yet they are not enslavement. It is especially important to remember that California’s domestic partnership laws extend all the goodness of marriage to domestic partners without the term “marriage”.
  • Let’s review what happened here. The California Legislature, exercising that power of representative democracy that was their due, passed a statute defining marriage as between a man and a woman. In a case brought to them that caused judicial review of the law, the California State Supreme Court struck down the law as being inconsistent with the Constitution of the State of California, and hence unconstitutional. Exercising provisions for altering the Constitution of the State of California (contained within and explicitly stated there) the people of the State of California voted to amend their Constitution in a manner in which a state regulatory function (that is, the granting of marriage licenses) was determined to be applicable only to unions of a man and a woman (incidentally, who also must be of the age of consent).

I would have voted for Prop 8, largely because I think the State Supreme Court overstepped its bounds. If the people of California put forward an amendment to take the state out of marriage altogether, I’d support that too.

But there was NOTHING un-American about what went on there. In our system, the will of a determined majority is unlikely to be stymied.


Anonymous said...

The people have spoken. There was a vote. The vote was legal. The majority of people in California feel that same-sex marriage is wrong. Much like I am not complaining about the General election where my party did not win, I am not complaining about this. Democracy at it's finest.

Anonymous said...

1. The definition of enslaved is "To make into a slave."

2. The definition of marriage is "The legal union of a MAN &WOMAN as husband and wife."

3. The definition of a Civil Union is "A legal union of a same-sex couple, sanctioned by a civil authority."

4. The definition of wife is "A woman joined to a man in marriage; a female spouse."

5. The definition of husband is "A man joined to a woman in marriage; a male spouse."

6. The definition of love is "A deep, tender, ineffable feeling of affection and solicitude toward a person, such as that arising from kinship, recognition of attractive qualities, or a sense of underlying oneness.
Or, A feeling of intense desire and attraction toward a person with whom one is disposed to make a pair; the emotion of sex and romance.

To allow same sex marriage would require changing the definition of marriage as it is quite clear that a man cannot be a wife nor can a woman be a husband.

If persons of the same sex have such strong feelings for one another, they have other options such as civil Unions, granting full Power of Attorney to each other or Living Wills.

What civil rights are presently not available to gay people?
It is often asserted that problems for gay couples are claiming inheritance and social security benefits? Adoption? Or if one partner dies, the other cannot get the inheritance, and they cannot claim properties that belonged to their partners. In extreme cases, they may be homeless.

Civil Unions, granting full Power of Attorney to each other or Living Wills would eliminate all of those problems so changing the definition of marriage in order to placate those in favor of same sex unions should not be necessary.

To do so would open a Pandora's Box of other groups seeking recognition and legalization of their idiosyncrasies under the law

Goldwater's Ghost said...

Who knew I was a deep thinker? I'm touched.

Anonymous said...

Why do the radical feminists see marriage as the enslavement of women (womyn?) yet insist on the "right" for two lesbians to "tie the knot"?

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