I have been watching and reading a lot lately about Proposition 8 and the protests surround it in California. As I have been reading, there are a few thoughts I would like to express about democracy and our system of government as a whole. I am going to try as hard as I possibly can to not pick a side on this, but rather give my thoughts on our system. As a matter of reference this is coming from someone with a minor in American Government, particularly a focus on constitutional history and law. I am also certified to teach this subject in public school. In other words, I have documents hanging on my wall indicating that I know, at least to some degree, what I am talking about.
Separation of Church and State
I have read a lot of discussion on the separation of church and state, and the possible infringements on the precept that have surfaced. But what exactly does this mean? Historically the concept was included in the Constitution to prevent one particular church from becoming the state sponsored religion. Such a religion would have obvious advantages for that group and disadvantages for another group. It is pretty clear why this separation is important.
What the Constitution or the Founding Fathers never stipulate, however, is a separation of RELIGION (as a concept) and state. In fact, they described the interconnection of the two elements as absolutely essential. They observed that in order to govern you must follow the precepts of the Almighty God when enacting legislation.
But what does that mean today? Religion can be expanded in this sense to include the concept of morality. Therefore, there is no legal standing for the separation of MORALITY and state. Most citizens develop and base their ideas of morality on religious views, and I think this is where the confusion comes from. But others without religious views still have a sense of what they believe is moral, and use that sense to determine their politics. This does not equate to a state sponsorship of any church, nor as a state sponsorship of established religion as a whole. What it does indicate is a state sponsorship of Americans making decisions based upon their moral compass. You may disagree with another’s version of morality, so you are obligated to make your own decision on the subject. This is what happened in California on Prop 8. Individuals evaluated the situation and made a decision based on their ideas of morality. This is how our system works. Make no mistake about it: every law that is passed is ultimately tied to a moral question. Prop 8 was no different.
Marriage: Inherent right or legal contract?
The argument is being made that it is an issue of civil rights. So the question becomes, is Marriage a right guaranteed constitutionally? Strictly speaking, no, there is no mention of marriage in the Constitution of the Bill of Rights. The Ninth Amendment does provide some legal basis for the argument, however, as it provides for the protection of rights not specifically mentioned in the Bill of Rights – a “catch all” if you will. The Declaration of Independence does list our inalienable rights as Life Liberty and the Pursuit of Happiness. Though the declaration itself is not a binding Constitutional document as such, it has been used previously to set legal precedent, and thusly can be considered here. What constitutes the pursuit of happiness? There have been a few judicial rulings on the subject, some indicating that it is an indication of the right we have to pursue whatever vocation we would like and not necessarily as an indication of emotional fulfillment (Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 1884). However, perhaps a more applicable verdict was handed down by Chief Justice Earl Warren. When commenting on Loving v. Virginia (388 U.S. 1, 1967), Warren said, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” This case involved a statute prohibiting interracial marriage. So the argument can be made according to precedent that marriage is in fact an essential right needed to pursue happiness. It seems marriage then has a strong case as an essential right.
For argument’s sake, let us entertain the idea I’ve read that marriage is not an inherent right, but rather a legal contract. This argument has been used by both sides of the issue in different forms. If this is the case, the state absolutely has the right to dictate the requirements of said contract. Much like state requirements to obtain a driver’s license, or build a building, or own a house, the legal requirements of such a legal contract are at the discretion of the state to determine. End of story.
But I think the “rights” argument is more compelling and substantial. If marriage is in fact a right, the question becomes, what is marriage? The goal of Prop 8 (on a legal level) is to create a clear legal definition of a previously vague term. The people were presented with a definition, and were given the opportunity to individually decide if they felt it was an appropriate definition. Of course they used their morality to make this decision. There is no other way. The majority decided that the definition that was presented was indeed acceptable. Is there dissension? Of course, every law has dissension. But two of our three branches of government are established to carry out the will of the majority.
Handling Dissention
Now in California marriage is more clearly defined. Those against Prop 8 now have a few choices. They can accept the legislative defeat and move on. (This is not uncommon; for instance, the consumption of alcohol is considered by many to be immoral, and has been fought with success in the past by the teetotalers. Later it was overturned, and alcohol consumption is legal within limits. The religious folks lost this one, and have come to accept it.) Or they can fight it.
Do they have a right to protest and assemble? Absolutely they do. At this point in the process, however, it is not very smart. One of the amazing qualities of Americans is to be able to accept transfers of power and ideas peacefully and without violence and uprising. If McCain supporters had staged protests after the election, they would have been written off as ridiculous (instead they post comments on facebook about moving to another country. Don’t worry, those folks look ridiculous too). The same thing is going to happen to the Prop 8 protesters. Just as others unhappy with voting results will calm down and look forward to casting a different vote in four years, those unhappy with Prop 8 would serve themselves well to calm down, breathe a little, and strategize on their next step. For now they simply look severely over dramatic. If they want to eventually over turn this decision they are going to need to convince people to change their moral stance on the issue. However they decide to do it, they will NOT do it by making those people late for work by causing gridlock. They end up looking silly. There is a smart way to use the tool of assembly, but this is not it. They will end up making their situation much less sympathetic.
Draw up legislation. Bring it before a judge. The purpose of the judicial branch is to be the voice of the minority (checks and balances and all) and is protected from the majority. They may rule in favor, they may rule against, I don’t know. But that is the system.
Both groups are passionate about their position. Is there a right or wrong answer? Of course – but it is different for each and every person. You cannot fault someone for voting according to their moral compass, regardless of their vote. Stop the name calling. It does neither side any good to use terms and phrases such as “bigot” or “God hates the Gays.” I realize it is an emotional issue, but the majority has spoken. Both sides need to accept it and work within the system. Because both sides are going to have a tough time getting the other to change their minds.
I know there are other complex issues involved, and I apologize if you feel I’ve oversimplified anything. I’m happy to discuss any other issues regarding this you may have on your mind.
Is Prop 8 unconstitutional? I have my opinion on the subject. But it doesn’t matter what I think. It matter what you think. And what you do.
Separation of Church and State
I have read a lot of discussion on the separation of church and state, and the possible infringements on the precept that have surfaced. But what exactly does this mean? Historically the concept was included in the Constitution to prevent one particular church from becoming the state sponsored religion. Such a religion would have obvious advantages for that group and disadvantages for another group. It is pretty clear why this separation is important.
What the Constitution or the Founding Fathers never stipulate, however, is a separation of RELIGION (as a concept) and state. In fact, they described the interconnection of the two elements as absolutely essential. They observed that in order to govern you must follow the precepts of the Almighty God when enacting legislation.
But what does that mean today? Religion can be expanded in this sense to include the concept of morality. Therefore, there is no legal standing for the separation of MORALITY and state. Most citizens develop and base their ideas of morality on religious views, and I think this is where the confusion comes from. But others without religious views still have a sense of what they believe is moral, and use that sense to determine their politics. This does not equate to a state sponsorship of any church, nor as a state sponsorship of established religion as a whole. What it does indicate is a state sponsorship of Americans making decisions based upon their moral compass. You may disagree with another’s version of morality, so you are obligated to make your own decision on the subject. This is what happened in California on Prop 8. Individuals evaluated the situation and made a decision based on their ideas of morality. This is how our system works. Make no mistake about it: every law that is passed is ultimately tied to a moral question. Prop 8 was no different.
Marriage: Inherent right or legal contract?
The argument is being made that it is an issue of civil rights. So the question becomes, is Marriage a right guaranteed constitutionally? Strictly speaking, no, there is no mention of marriage in the Constitution of the Bill of Rights. The Ninth Amendment does provide some legal basis for the argument, however, as it provides for the protection of rights not specifically mentioned in the Bill of Rights – a “catch all” if you will. The Declaration of Independence does list our inalienable rights as Life Liberty and the Pursuit of Happiness. Though the declaration itself is not a binding Constitutional document as such, it has been used previously to set legal precedent, and thusly can be considered here. What constitutes the pursuit of happiness? There have been a few judicial rulings on the subject, some indicating that it is an indication of the right we have to pursue whatever vocation we would like and not necessarily as an indication of emotional fulfillment (Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 1884). However, perhaps a more applicable verdict was handed down by Chief Justice Earl Warren. When commenting on Loving v. Virginia (388 U.S. 1, 1967), Warren said, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” This case involved a statute prohibiting interracial marriage. So the argument can be made according to precedent that marriage is in fact an essential right needed to pursue happiness. It seems marriage then has a strong case as an essential right.
For argument’s sake, let us entertain the idea I’ve read that marriage is not an inherent right, but rather a legal contract. This argument has been used by both sides of the issue in different forms. If this is the case, the state absolutely has the right to dictate the requirements of said contract. Much like state requirements to obtain a driver’s license, or build a building, or own a house, the legal requirements of such a legal contract are at the discretion of the state to determine. End of story.
But I think the “rights” argument is more compelling and substantial. If marriage is in fact a right, the question becomes, what is marriage? The goal of Prop 8 (on a legal level) is to create a clear legal definition of a previously vague term. The people were presented with a definition, and were given the opportunity to individually decide if they felt it was an appropriate definition. Of course they used their morality to make this decision. There is no other way. The majority decided that the definition that was presented was indeed acceptable. Is there dissension? Of course, every law has dissension. But two of our three branches of government are established to carry out the will of the majority.
Handling Dissention
Now in California marriage is more clearly defined. Those against Prop 8 now have a few choices. They can accept the legislative defeat and move on. (This is not uncommon; for instance, the consumption of alcohol is considered by many to be immoral, and has been fought with success in the past by the teetotalers. Later it was overturned, and alcohol consumption is legal within limits. The religious folks lost this one, and have come to accept it.) Or they can fight it.
Do they have a right to protest and assemble? Absolutely they do. At this point in the process, however, it is not very smart. One of the amazing qualities of Americans is to be able to accept transfers of power and ideas peacefully and without violence and uprising. If McCain supporters had staged protests after the election, they would have been written off as ridiculous (instead they post comments on facebook about moving to another country. Don’t worry, those folks look ridiculous too). The same thing is going to happen to the Prop 8 protesters. Just as others unhappy with voting results will calm down and look forward to casting a different vote in four years, those unhappy with Prop 8 would serve themselves well to calm down, breathe a little, and strategize on their next step. For now they simply look severely over dramatic. If they want to eventually over turn this decision they are going to need to convince people to change their moral stance on the issue. However they decide to do it, they will NOT do it by making those people late for work by causing gridlock. They end up looking silly. There is a smart way to use the tool of assembly, but this is not it. They will end up making their situation much less sympathetic.
Draw up legislation. Bring it before a judge. The purpose of the judicial branch is to be the voice of the minority (checks and balances and all) and is protected from the majority. They may rule in favor, they may rule against, I don’t know. But that is the system.
Both groups are passionate about their position. Is there a right or wrong answer? Of course – but it is different for each and every person. You cannot fault someone for voting according to their moral compass, regardless of their vote. Stop the name calling. It does neither side any good to use terms and phrases such as “bigot” or “God hates the Gays.” I realize it is an emotional issue, but the majority has spoken. Both sides need to accept it and work within the system. Because both sides are going to have a tough time getting the other to change their minds.
I know there are other complex issues involved, and I apologize if you feel I’ve oversimplified anything. I’m happy to discuss any other issues regarding this you may have on your mind.
Is Prop 8 unconstitutional? I have my opinion on the subject. But it doesn’t matter what I think. It matter what you think. And what you do.
