* Prop 8: Americans have no respect for freedom
Topics: Civil Liberties
18 Nov 2008
From: Ervan Darnell
As you likely know, California recently passed by 52.5% the odious prop
8, repealing the recently recognized right of same-sex couples to marry.
The issue is much broader than the small increment in legal protections
that exist between civil unions and marriage. The pro-equality side
feels besieged and discriminated against across the board, a minority
without rights in a country that claims to offer equal protection. The
passage of prop 8 was symbolic for many past and most continuing
inequalities. Meanwhile, the anti-equality side's strong supporters are
not particularly concerned with marriage either. They are motivated to
impose any harm they can (not everybody who voted "yes" is like that,
but the core supporters are). Thus, the symbolic significance of prop
8 is far greater than the legal significance.
I don't want to belabor the deceitfulness of the "yes" campaign, the
strategic mis-steps of the "no" campaign, thrash out the legal details,
nor rehash all of the primary arguments. Instead, I want to offer two
observations a little more Ragnar-relevant:
1) Democracy is a failure
The first reason is that a majority of voters have just confessed they
are idiots, and likely bigots as well. How is the system supposed to
work when such people are running it?
The second reason is that there could be no clearer expression of
tyranny of the majority, even if the "yes" side had an argument.
Worse, it's largely a tyrannical religious majority as weekly church
attendance was the strongest (exit polling) factor and 70% of the "yes
on 8" funding came from the Mormons, largely generated through the
church hierarchy (with tax exemption!) urging their members to donate.
Thus, tyranny of the majority just ran over the principles of both the
First and Fourteenth amendments. Whether or not "prop 8" is
California-constitutional (currently being litigated on the theory that
the wrong process was followed for a "revision"), the point here is that
a democratic majority didn't give a damn for either the principle of
separation-of-church-and-state or equality-under-law, but was intent on
imposing its particular vision of how everyone should behave (in
fairness I think few of the "no" voters paid those principles any heed
either, but rather voted their moral conviction, but at least it was the
right moral conviction [5]).
There is the somewhat narrower question of how something that is
instantly unconstitutional under the Fourteenth Amendment can pass
judicial muster. And here I don't mean just the ordinary plain English
meaning, but the judicial construction of "strict scrutiny", and the
precedents of invalidating racially discriminatory laws, including, most
directly, Loving v. Virginia (legalizing interracial marriage because
marriage was a fundamental right that the government had no compelling
interest to override). It speaks to how political SCOTUS can be as well
(we all know what the outcome would be if they addressed it).
2) Americans are anti-freedom
> Pew puts the equation bluntly[4]: "Belief that homosexuality is
> immutable [is] associated with positive opinions about gays and
> lesbians even more strongly than education, personal acquaintance with
> a homosexual, or general ideological beliefs." [1]
Let me first dispense with the obvious, which I believe everyone on this
list agrees with, the idea that sexual orientation is a choice is
instantly disproved by the most casual introspection of one's own
feelings or the simple observation of cost-benefit analysis (why would
anyone choose it?). Either reason is sufficient. It's an idea so
preposterous that only a religious person would believe it because you
need to have faith in order to ignore all available evidence. And,
indeed, the polling confirms that higher church attendance corresponds
to believing sexual orientation is a "choice".
I don't here want to weigh in on ultimate cause because the science is
unsettled, nor get lost in a philosophical discourse on what "choice"
means. My point is simply this: it doesn't matter! All of the (valid,
libertarian) arguments are the same in either case. Why should
someone's right to marry or have sex with another consenting adult be in
any way contingent on "choice" versus predisposition? There is no
reason. I don't want to exhaust the list here, but thinking of every
argument on either side of the debate, "choice" doesn't affect its
logical correctness or error.
The California Supreme Court in their decision recognizing a right to
same-sex marriage[2] noted that religion, a "choice"[3], is protected
under "strict scrutiny" and race, not a choice, is also protected under
"strict scrutiny". So, it's irrelevant to even bother asking the
question for sexual orientation.
But the significance of the survey is that a substantial majority of
Americans have no respect for individual freedom, no appreciation for
the basic argument that the government should not be regulating whom you
can love (or have sex with), but instead are left only with some sort of
sympathy guilt that says "okay, we'll tolerate it since you have no
choice." That's pathetic.
------------------------------------
[1] http://www.slate.com/id/2204534/
[2] http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF
[3] Scare quotes because there is an argument that religious belief is
not a choice really either, even though the particular expression of it
might be. Regardless, I'll take it as obvious that adhering to a
particular religious sect (which is the protected part) is more of a
choice than sexual orientation is.
[4] http://pewforum.org/docs/?DocID=38#5
[5] Off topic from my point here, I cannot help but include MSNBC's
Keith Olbermann's commentary as a great example of the moral argument:
http://www.youtube.com/watch?v=hnHyy8gkNEE
or search youtube.com for "Special Comment on Gay Marriage ~ Keith Olberman"
_______________________________________________
Ragnar mailing list
Ragnar@ragnar.kelvinist.com
http://ragnar.kelvinist.com/mailman/listinfo/ragnar
Home