Friday, August 6, 2010

Proposition 8, Gay Marriage, and the Challenge for Conservatism

As the dust settles from Proposition 8's overturn by a Reagan-nominated federal judge, it is settling in some anticipated ways. Those who support gay marriage are heartened by the vigorous and far-reaching character of the ruling by Justice Vaughn Walker. Opponents are falling back and retrenching, and likely hoping that the conservative Supreme Court will choose to overturn the ruling.

The challenge for the conservative position, unfortunately, is that it is clearly and objectively weaker. That weakness comes because in the public arena, the literalist interpretation of Scripture that is the basic foundation of most opposition to gay marriage has no purchase. You cannot argue an effective constitutional case from a few snippets in Leviticus and Paul. Honestly, you can't make an effective scriptural case, either, but that's a topic I've explored elsewhere. In the absence of the literalist framework, the argumentation comes across as fundamentally shallow. Take, for instance, three current pillars of conservative argumentation.

1) Gay marriage threatens marriage. This stance, which is a standard position, has the unfortunate character of being self-evidently wrong. Anyone who is married knows this. My heterosexual marriage is not impacted in any way by gay marriage. Period. If the state chooses to extend those rights to another class of citizen, that does not in any way abrogate my own rights. No matter where you stand on the issue, that remains true. It also in no way impacts the sanctity of a covenantal union. If you believe that marriage is fundamentally a covenant between a man and a woman, bound together by the grace and power of their Creator, then the extension of legal and civil rights to gays and lesbians can in no way impact those covenants. One is an action of the state, and the other is an action taken from within the framework of faith.

2) Proposition 8 was overturned by a judge who was defying the will of the people. This is materially correct. Justice Walker did overturn a referendum. Problem is, that's the entire purpose of the judiciary in the American Constitutional system of governance. The judiciary exists to serve the law...and the Constitutional liberties of all Americans...over and above the will of the majority. That is its purpose. If a justice is doing his or her job, their fealty is first and foremost to the Constitution. Unfortunately, the case for Proposition 8 has little foundation in our Constitution. Its clear purpose was to deny a particular minority class of citizens a right held by the majority.
3) The overturn of Proposition 8 decision threatens religious liberty. This argument plays directly into the culture of self-entitled aggrievement that seems to define so much of American life. The argument goes like this: I believe, from my faith, that homosexuality is sinful. If I am required to provide benefits to gays and lesbians or tolerate their unions, the requirement that I be tolerant is a fundamental violation of my religious freedom.

This argument seems not to grasp the nature of freedom. Within our constitutional republic, the rights of every individual are protected, in so far as they do not impinge on the rights of other individuals. That's the purpose of the Constitution. There is no evidence that permitting same sex marriage in any way impinges on the rights of conservatives to believe that homosexuality is sinful. This ruling has no impact whatsoever on the proclamation or teaching of that particular approach to faith.

What might be limited is the right of a small business owner to deny health care benefits to same-sex partners, or to refuse to hire/rent or sell to/serve individuals who they view as basically evil. Here, conservatism faces within itself a clear ideological conundrum. Within our republic, freedom is not without limits. If an individual acts in such a way as to restrict the liberty of another, they are using their freedom in a way that undercuts the freedoms of others. Again,the purpose of the government in a constitutional republic is to balance the liberty of all, at the least possible cost to liberty.

Against that metric, the conservative position falters. Gays and lesbians who seek legally recognized marriage are not meaningfully limiting the religious or personal liberty of those who view their behavior as undesirable. It does no harm to the liberty of a conservative, to the life they choose to lead, or to the faith they choose to practice. That's not the way it's going to be played, of course. But it is, nonetheless, true.

What will be interesting is seeing how the Supreme Court handles this. Having read the ruling in some detail, it's striking how deeply founded it is in precedent and "original intent" of the Constitution.


  1. Hear, hear! (Get well soon too from the bronchitis.)

  2. You are assuming that Fundamentalists and bigots are rational people. I've come to the conclusion that that is too much to hope for.

    They may seem rational on the surface, but then you run into things like one blog I read that basically said if we don't hold the moral line against the gays, tomorrow we won't hold the moral line against the Nazis. It's crazy!

    I think you are right that making laws that restrict the rights of one class of people that are claimed by another will never go over constitutionally. The whole purpose of "law" is to stand against irrational mob rule. That is exactly what Prop 8 was all about.

    That it passed in today's day and age is probably an indictment against the education system, because it was obviously unconstitutional at face value for anybody who has spent half a second studying the reasons and content of the US constitution. The demographics in post election surveys did show that the voter trend broke along the lines of education, with folks with less formal education voting for and higher formal education voting against.

    But most troubling was the proactive campaign of the right wing of the Church. When did the Fundamentalist Bible start demanding human sacrifice from its worshipers?

    There is an element of tail spin here. The louder the Fundamentalists yell about what they say the Bible says, the more embarrassed the rest of us become about saying what the bible really says, lest we be identified with them. And the less we educate folks about the teachings that are really found in the Bible the more likely they are to accept the Fundamentalist views of what it says.

    We need to break the cycle.

  3. Thanks for writing this. I appreciate your analysis of the situation, and I wonder how the other side might respond to this line of argument... it would be interesting to get level-headed representatives from both sides of the debate together to reason with one another over the issues that concern them from a constitutional stand-point.

  4. I am never surprised when Americans of any opinion seek to limit the speech of those with whom they disagree. For some reason too many Americans just don't get the free speech clause in the First Amendment. If I burn an American flag on July 4 on my front lawn I fully expect to be beaten by my neighbors and/or arrested.

    I prefer polite disagreement and careful discussion but I find in many locations, including electronic ones like blogs, that politeness is long gone in America if it ever existed. Fortunately Beloved Spear is always polite.

  5. I used to be polite on Fundamentalist blogs, but they just wouldn't stop calling me names.

    That's when I was nice.

    Then I found out that what I thought was ugly name calling was really their way of being nice back to me.

  6. @Sarah - I would take a crack at defending the "other side," but there are more than two sides here. People on my side want the government out of the marriage business and then out of business altogether.

    I support Prop 8 insofar as it is a cruel joke; a rock that will roll back and crush its proponents. I support it insofar as it reveals the tyranny of democracy and the futility of voting.

    I am against Prop 8 because it is an attempt to deny a minority the rights enjoyed by the majority, and it is another diversion that keep us squabbling with one another while the government destroys us all.

  7. Jodie

    You are always welcome at my blog. Then again I don't consider myself to be a fundamentalist.

  8. Thanks Bob,

    I didn't realize you were posting again. No, you've never called me names, and I think I've always been civil with you as well. (True?)

    @neworldview, I don't share the view that our government is out to destroy us. It's just that many of us think that government is about ruling us, while others think its about serving us.

    There is a paradox though, in that most people in America who think government is about people ruling us also don't want to be ruled by people. So they want less of it.

    But those of us who think government is about public service are frustrated that we are not getting enough service. So we want more of it.

    But the fundamental premise of the American Government is that we are all ruled by laws, not people, the highest law being the Constitution.

    That is why you can't just have a bunch of people make up a law and make it so. The laws we make up must pass the test of not being at variance with the Constitution.

    So one branch of "government" writes the laws, one branch checks to see if they agree with the Constitution, and if they do, yet another branch enforces the laws.

    No one person or branch actually rules.

    The responsibility of "we, the people" is to choose wisely and keep an eye on those we choose for two of the three branches.

    Writing laws ourselves is mucking with the proper order of things. In California it has only created chaos. Ruined what was once the best state economy in the Union, destroyed what was once the best education system in the Union, and with this last thing, nearly turned decent religious folks into a lynch mob full of hatred and bigotry.

    Not the American Experiment at its best, I'm afraid.

  9. @Jodie a couple thoughts:

    1. part of the destruction of California's economy comes from an old proposition, proposition 13, sometime in the late 1970s. It basically says that anyone who owned a house between 1975 and 1978 would have their taxes revert to the 1975 price and that their taxes can never be raised. That means a house now worth a million dollars is still taxed at the 1975 level if the owners are still the same. Also this means that those who buy houses later take up more of the cost of taxation. This has massive effects on the CA budget. Stinks, yes?

    2. Back in 1970 supposedly CA had the best educational system in the nation. I moved from NJ to CA in 1970 and discovered that my education in NJ was much better than that offered in our particular school district in CA, northern Orange Country: rich suburbia. So when was it that CA had the best school system?

  10. Hey Bob,

    I am well aware of Prop 13. The end result is that prices of houses went way up, real estate folks and banks made a bundle, and the money that might have gone into taxes and schools and infrastructure went instead into mortgage interest. The home buyer pays as much or more than ever out of pocket. The money just goes someplace else.

    About the better school system, it was spotty at the grade school and high school level. I attended a grade school in Santa Barbara in the 60s and it was much better than my friend's school in Los Angeles.

    But the college system was the envy of the planet.

  11. I agree about the college program. There are times when I wonder why I didn't drop the idea of going to college in Ohio and go to UCLA or one of the other UC schools. It would have cost less and I still would have gotten a good education. But then I wouldn't have met my wife . . . Providence is a curious thing isn't it?