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.