Monday, October 27, 2008

Proposition 8: Closing arguments

The day is drawing near and I will, frankly, be elated when this election which has gone on far too long, even for my liking, finally comes to an end. As it stands, McCain has an impossible hole to climb out of. I am intrigued for what comes next with President Obama and his no doubt dynamic cabinet. But since he has no bearing on the all important Proposition 8 (yet), I move on.
Kevin requested a Constitutional citation for my loose claim that "the rights of individuals and minorities end where they begin to infringe upon the rights of the majority." Schenk vs. United States was the original inspiration for that comment, as I recalled from my Political Science courses. Note: the overall premise of this case has largely been discredited. I bring up a specific comment from the case only as a contextual reference, not to substantiate my claim. Justice Oliver Wendell Holmes wrote the opinion for the case, making this hallmark claim:
"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
Since the Prop 8 debate revolves largely around weighty issues pertaining to the first amendment that is where I will turn to substantiate my claim:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances."
Now, here is where the two relate. Holmes' statement, while no longer the basis for sound restriction of first amendment freedoms, highlights a common misinterpretation about our most controversial bill of right. And that is that it does not in fact grant anything, but rather prohibits Congress from encroaching on liberties that already fundamentally exist. Ultimately and inevitably, our so called inalienable rights come into conflict with one another in ways that neither the Constitution nor hundreds of Supreme Court cases can viably or consistently answer. When this happens, as in the current clash over Prop 8, it is not the government's job to guarantee rights to any group, as opponents of Prop 8 erroneously assert. It is the job of government to prevent infringement upon rights as little as possible.
As there is no tangible difference in the State Constitution of California between a civil union and a homosexual marriage, the defining of marriage between only man and woman would do nothing to take rights away from homosexuals; however, it does everything to protect churches and parents from having their rights infringed upon…If Prop 8 does not pass, the rights of churches and individuals to maintain a moral stance against homosexuality is threatened. So, I hate to be the bad guy here and assert that the Constitution just can't provide rights to everyone, but I'm sorry. That is not its job. In this case, where two groups conflict with one another, the Constitutional test of encroaching as little as possible should default to the majority because the minority’s rights are not affected. That is what I meant when I said that the rights of minorities and individuals end where the rights of the majority are infringed: since the Constitution cannot grant individuals’ rights, the most imperative role of the first amendment is to encroach on the rights of as few people as possible.
Passing Prop 8 does not encroach on anyone’s rights because the right for homosexuals to marry has never existed in the first place, and they have all the same rights as a married couple in a domestic partnership anyway. If it doesn’t pass, the fact that the ACLU exists all but guarantees that churches and individuals wanting to maintain a moral stance against homosexuality will have their rights challenged by the government. It would take one teeny tiny little massive lawsuit going to the federal Supreme Court to eradicate the so-called religious protection granted by the California Supreme Court. If you don’t believe the ACLU has plans for that very thing, read here for a long list of court cases where such has already occurred around the country-and this is not an LDS sponsored article. It was done by NPR.
It has been suggested that, “ideally, we should grant the equality to same-sex couples now, and then, if circumstances necessitate, similarly fight for groups, religious and otherwise, who have their own rights challenged…” Right. I feel really great about that with the ACLU at the helm. I am about as confident that they will fight against homosexuals to protect religious and parental freedoms as I am that John McCain will be our next president.
The real problem between these two factions is that of criterion. When I was on the debate team in high school, every case I argued began with a criterion value. People don’t understand much less begin to agree, until they at least start from the same basic premise. Even within our own ranks we are arguing from different vantage points and that has been the real stimulus for contention. I guess that some of us are operating from the same value stance of rights, but ultimately it comes back to moral paradigms. And too few of us are operating from the same one: we each think that protecting the rights of our own group is more morally sound or important, which ultimately proves my point that the Constitution simply cannot, nor should it try, to give rights to a group which threatens the rights of another.
I can make plenty of good arguments as to why Prop 8 should pass on legal and logical grounds. Frankly, after I have spent so much time reading and researching those reasons, I actually think the very best one, and most simple, is that 47 out of 50 states agree that homosexual marriage should not be allowed, as do both of our presidential candidates. But that doesn’t help convince any of the 10% of undecided people who will ultimately make this decision. I hope that you fence sitters have done your research. Hopefully you will conclude that giving rights of marriage to homosexuals is not only not the responsibility of the Constitution, but the implications thereof are far too threatening to the rights of parents and churches for the Constitution to feasibly protect.

15 comments:

lauren said...

bravo. i'm seriously so proud to be your friend. your political acumen is still first rate, and your arguments are devoid of ignorance and self-righteousness. i hope that the undecided somehow stumble across this post and see its merits and its validity.

Chelsea said...

I"M SORRY I LIKE FOOD...and only talk about/blog about food and frozen yogurt! Just kidding, on a serious note I just can't compete with yours or anybody elses brilliant attempts to save America! You really are brave and intelligent.

Benji said...

Well put. I'm also really looking forward to the end of this election. It's seriously so much more draining when you're fighting for a cause you really believe in.

Michelle Tolboe said...

Good read. Citing actual statistics and examples help prove your stance once again.

All I have to say is, KEV, where you at?

Martin Family said...

Wow, once again... will you be my lawyer? your just so good at stating things so eloquent & perfect!

Mcbride Family said...

Seriously, Linford left those glasses/mask on the ENTIRE NIGHT! I was thrilled because it totally MADE the costume. It was so funny. He didn't mind them at all it was great.

Ali Seaman said...

This is so well written and such a sound argument. Is there any way to take it to the masses? I hope the masses read your blog. AMEN. That's all I have to say.

I love your ability to reason and express the truth. Thanks, Ash.

CHUNTZ said...

Lets just say Im with you..cant wait for this election to be over. When it all comes down to it politics can be a joke! Love you Ash...not gonna lie I think I had to much fun with the "anonymous" comments...bless whoever it may be. Have a happy Halloween. Miss you!

Kevin said...

Michelle, I am here!

I hadn't checked back on this blog in a while, and I did respond to this same argument Ashley posted on my blog in my own Prop 8 thread. As requested, I'll post that response here:


Ashley, you've got a lot of well argued points here,

Touche on the country's founders protecting the rights of minorities. Their words implied that they cared about freedom for everyone, but their actions certainly contradicted this sentiment.

Yet isn't it through wisdom that we have come to realize not to oppress the groups our ancestors did? That when we say "liberty and justice for all" we really mean for all?

Thanks for coming back with a specific case. I'd argue that it is easier to prove that crying "fire" in a theater is a "clear and present danger" -- how are you going to make that same argument for same-sex marriage? Whose lives does that threaten?

I agree with your claim that the government should infringe upon rights as little as possible. What I fail to see is how a Constitutional amendment to limit the rights of certain individuals fulfills this claim.

I'll grant you that the differences between marriage and civil unions in California are minute (though that is not true in other states), but it still brings up the idea of "separate but equal" where we make distinctions between our citizens. Notions of "separate but equal" have consistently been shot down as wrong by our courts.

Just because a "right" hasn't been granted in the past doesn't make it not a right. We are slow to pick up on these things sometimes, unfortunately.

Okay, we finally have an admission that Prop 8 is a preemptive strike of sorts, an attempt to prevent churches from being legislated. Okay, I see that perspective, and can even see the concern. But on what level is it right to deprive other people of personal freedoms in the quest to preserve your own? My personal ethics would never allow me to do that: I think it's important to do the right thing each step of the way. I think one of the problems that the religious right will encounter in the long-term, though, is that actions like this will alienate people from wanting to reciprocally protect religious freedoms.

Actually, both Obama and Biden feel that the government shouldn't be in the business of defining marriage. In fact, they are publicly opposed to Prop 8.

You argue that "giving rights of marriage to homosexuals is not... the responsibility of the Constitution." Yet you are voting in favor of a Constitutional amendment to do just the opposite. If you think it is not the responsibility, you should be voting no, and leaving the Constitution out of this debate.

I call bull on Prop 8 protecting parents and churches. Many gay people are parents and many attend church. They may not be welcome in your particular family or affiliation, but it's not for you to decide on a macro level.

Ashley said...

Kevin-
Since you didn't bring up any new arguments and basically defaulted to a straw man response, I'm not going to spend a lot of time responding.

I'm NOT going to argue the clear and present danger argument for my position; I stated that I only brought that case up for contextual reference. I made my argument that majority rights trump minority rights, when the two threaten each other's rights, based on the first amendment.

We fundamentally disagree about rights: you ask again how my argument pertains to the restriction of homosexual rights. It doesn't. Homosexuals don't have the right to marry because 1-what they want to call marriage is fundamentally different from marriage and thus should not be equated with such 2-The Constitution has no obligation to "give" a right that does not exist, only to prevent government from infringing on existing rights.
Furthermore, a civil union does for homosexuals what the Constitution cannot.

Anyway, we have been through all of this time and time again. The biggest problem is that you see this as a deprivation of rights for one group that you value, which I do not recognize, and vice versa. We simply have different priorities. I see absolutely zero merit in your argument that Prop 8 supporters want to "deprive people of rights." By your own admission, there is very little difference between marriage and civil unions, semantics really.

My personal ethics also encourage me to do the right thing every step of the way...we just disagree about what that right thing is. Sad, and scary, I know. Frustrating too.

Since you have never acknowledged or rebutted my claim about the ACLU, I'll assume you don't disagree, thus further validating my concern for churches. And you are late to the game if you think the waning support for churches in the courts has not already begun.

If you want to contend that Obama supports gay marriage, then he is a flip flopper:
Although Barack Obama has said that he supports civil unions, he is against gay marriage. In an interview with the Chicago Daily Tribune, Obama said, "I'm a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman."http://lesbianlife.about.com/od/lesbianactivism/p/BarackObama.htm

But thank you for acknowledging my good arguments...I am growing so tired and resentful of the attitude that people who want to vote yes MUST be bigoted, prejudice and narrow minded and will one day be ashamed, once we "come to the light" for wanting to maintain some semblance of control over the moral relativity that has seeped into every facet of our existence. You're right. It's not for me to decide on a macro level. It is the people's right, which I still contend is the strongest argument. I realize that leaves me vulnerable...if the people vote against it on Tuesday, I will have to line up or move out (which I intend to do anyway.)

And anyone is welcome in my family-gay or straight. Even you Kevin. I'd love to have you over for dinner.

Benj said...

In keeping with your suggestion that voters educate themselves. I just thought I'd provide an opposing view:

I just thought I'd pass on this LA Times Article:

No on Proposition 8
Debunking the myths used to promote the ban on same-sex marriage.

November 2, 2008

Clever magicians practice the art of misdirection -- distracting the eyes of the audience to something attention-grabbing but irrelevant so that no one notices what the magician is really doing. Look over at that fuchsia scarf, up this sleeve, at anything besides the actual trick.

The campaign promoting Proposition 8, which proposes to amend the state Constitution to ban same-sex marriages, has masterfully misdirected its audience, California voters. Look at the first-graders in San Francisco, attending their lesbian teacher's wedding! Look at Catholic Charities, halting its adoption services in Massachusetts, where same-sex marriage is legal! Look at the church that lost its tax exemption over gay marriage! Look at anything except what Proposition 8 is actually about: a group of people who are trying to impose on the state their belief that homosexuality is immoral and that gays and lesbians are not entitled to be treated equally under the law.

That truth would never sell in tolerant, live-and-let-live California, and so it has been hidden behind a series of misleading half-truths. Once the sleight of hand is revealed, though, the campaign's illusions fall away.

Take the story of Catholic Charities. The service arm of the Roman Catholic Church closed its adoption program in Massachusetts not because of the state's gay marriage law but because of a gay anti-discrimination law passed many years earlier. In fact, the charity had voluntarily placed older foster children in gay and lesbian households -- among those most willing to take hard-to-place children -- until the church hierarchy was alerted and demanded that adoptions conform to the church's religious teaching, which was in conflict with state law. The Proposition 8 campaign, funded in large part by Mormons who were urged to do so by their church, does not mention that the Mormon church's adoption arm in Massachusetts is still operating, even though it does not place children in gay and lesbian households.

How can this be? It's a matter of public accountability, not infringement on religion. Catholic Charities acted as a state contractor, receiving state and federal money to find homes for special-needs children who were wards of the state, and it faced the loss of public funding if it did not comply with the anti-discrimination law. In contrast, LDS (for Latter-day Saints) Family Services runs a private adoption service without public funding. Its work, and its ability to follow its religious teachings, have not been altered.

That San Francisco field trip? The children who attended the wedding had their parents' signed permission, as law requires. A year ago, with the same permission, they could have traveled to their teacher's domestic-partnership ceremony. Proposition 8 does not change the rules about what children are exposed to in school. The state Education Code does not allow schools to teach comprehensive sex education -- which includes instruction about marriage -- to children whose parents object.

Another "Yes on 8" canard is that the continuation of same-sex marriage will force churches and other religious groups to perform such marriages or face losing their tax-exempt status. Proponents point to a case in New Jersey, where a Methodist-based nonprofit owned seaside land that included a boardwalk pavilion. It obtained an exemption from state property tax for the land on the grounds that it was open for public use and access. Events such as weddings -- of any religion -- could be held in the pavilion by reservation. But when a lesbian couple sought to book the pavilion for a commitment ceremony, the nonprofit balked, saying this went against its religious beliefs.

The court ruled against the nonprofit, not because gay rights trump religious rights but because public land has to be open to everyone or it's not public. The ruling does not affect churches' religious tax exemptions or their freedom to marry whom they please on their private property, just as Catholic priests do not have to perform marriages for divorced people and Orthodox synagogues can refuse to provide space for the weddings of interfaith couples. And Proposition 8 has no bearing on the issue; note that the New Jersey case wasn't about a wedding ceremony.

Much has been made about same-sex marriage changing the traditional definition of marriage. But marriage has evolved for thousands of years, from polygamous structures in which brides were so much chattel to today's idealized love matches. In seeking to add a sentence to California's Constitution that says, "Only marriage between a man and a woman is valid or recognized," Proposition 8 supporters seek to enforce adherence to their own religious or personal definition. The traditional makeup of families has changed too, in ways that many religious people find immoral. Single parents raise their children; couples divorce and blend families. Yet same-sex marriage is the only departure from tradition that has been targeted for constitutional eradication.

Religions and their believers are free to define marriage as they please; they are free to consider homosexuality a sin. But they are not free to impose their definitions of morality on the state. Proposition 8 proponents know this, which is why they have misdirected the debate with highly colored illusions about homosexuals trying to take away the rights of religious Californians. Since May, when the state Supreme Court overturned a proposed ban on same-sex marriage as unconstitutional, more than 16,000 devoted gay and lesbian couples have celebrated the creation of stable, loving households, of equal legal stature with other households. Their happiness in no way diminishes the rights or happiness of others.

Californians must cast a clear eye on Proposition 8's real intentions. It seeks to change the state Constitution in a rare and terrible way, to impose a single moral belief on everyone and to deprive a targeted group of people of civil rights that are now guaranteed. This is something that no Californian, of any religious belief, should accept. Vote no to the bigotry of Proposition 8.

Ashley said...

Interesting OPED Benj, not article, OPED. It was good. I bet I could find one that says the other side is doing the exact same thing...it's a campaign.

Are you really willing to argue that only the "YES" campaign has used manipulation, truth stretching and diversions to further their cause? In a race where 70 million dollars are being spent over a heated moral issue both sides are going to make statements on which the other side is going to call bull.

For example, I think the NO campaign's claim that the proposition is bigoted and discriminatory is a load of crap which detracts from the REAL issue: the homosexual/ACLU agenda of forcing people to accept homosexuality as normal, right and exactly the same as any other union.

Honestly, if I really believed that I was depriving a group of their fundamental rights, I would not vote for this proposition. What I am doing by voting for Prop 8 is saying that I want to be able to teach my children how I see fit about homosexuality; I am refusing to give the ACLU a pass to go ahead and force California to embrace homosexuality. I am saying that the homosexual community can and should have all the rights and benefits of marriage in a civil union without the mandated recognition that would give them the go-ahead to infuse their own agenda into government, schools and churches.

Benj said...

Ashley,
I have a feeling that you'd be singing a different tune if it was your group being forced to the "just as good" back of the bus.

Also, regardless of where the votes fall on this issue, you already have (and will continue to have) the right to pull your child out of class at any time, and for any reason. No one wants to change that.

And I meant 'article,' as in 'item'...

Ashley said...

Maybe you don't, but some people assuredly do. And thank you for highlighting another diversion that the NO campaign has been peddling-the seperate but equal comparison which is so very much not the same thing.

Benj said...

Hi Ashley,
I was just reading through some of your responses to Kevin, and wanted to quickly comment on the Obama thing.

He's a perfect example of how someone can hold true to his own personal belief without feeling the need to force everyone else to adhere to them.

He is personally against Gay marriage. Fair enough. At the same time though, he is against banning Gays from marrying. Even more fair.