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.