Thursday, August 5, 2010

Proposition 8 - It's All Over but the Overheated Assertions and Poor Arguments

Matt Rediger tries to explain how legalized equality for gay people, affirmed in yesterday's ruling [pdf] against California's Proposition 8, violates freedom of religion. Rediger:

[P]eople of faith cannot be expected to go against their beliefs, even if they view opposing beliefs and arguments as holding some kind of legitimacy. Two ethical systems can be legitimate, but they cannot necessarily exist in the same place at the same time. Usually, in our society, ethical systems can be kept to an individual level, but this is one of the situations where they infringe and for this reason, people will continue to fight for their convictions
Rediger's Law of Conservation of Ethical Systems almost sounds convincing -- almost -- for maybe six or seven seconds until one puts to mind the distinction between positive and negative liberty, together with the distinction between individuals and communities. Under our system of law, freedom of conscience is fundamentally a negative right that applies to individual human beings, not to communities.

Therefore, for any given point of space-time expansive enough to accommodate at least two persons (and therefore meeting the minimum requirement for a setting where rights would become a topic of interest -- say, an airport men's room), it is very much the case that distinct ethical/religious systems can co-exist without any damage to anyone's religious liberty.

I would go beyond that to say that the simultaneous presence of competing ethical-religious systems in a common hunk of space-time indicates -- suggests but doesn't necessarily prove -- that freedom of conscience, as properly understood here in America, is taking place as designed.

Rediger and other supporters of Proposition 8 seem to be under the illusion that freedom of conscience is a positive right belonging to communities -- something that majorities in distinct communities (like, say, the state of California) collectively enact through law. In the abstract, it's a nice enough notion -- it is beloved by the rulers of Iran, and the Taliban adored it even more in its heyday -- but it is decidedly not the way we are set up to operate here.

Squint and strain as we might, legalizing gay marriage does not violate anyone's religious freedom. The ruling addressed the point specifically:
Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

a. In re Marriage Cases, 189 P3d at 451-452 (“[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”) [citation]

b. Tr 194:24-196:21 (Cott: Civil law, not religious custom, is supreme in defining and regulating marriage in the United States.) ...
Simply put, the legalization of gay marriage has no effect on religious institutions because religious institutions do not, under law, have any legal authority over who counts as married. Both before and after this ruling, churches, mosques, and individuals remain free to refuse to preside over, approve, condone, or even acknowledge gay marriages; in the same way, churches, mosques, and individuals have long been free to accept or reject, love or detest, unions of mixed-race couples, mixed-faith couples, same-height couples, woman-taller-than-man couples, man-taller-than-woman couples, etc.

This ruling increases freedom and equality. It negates nothing worth preserving:
The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. [citation]. ... Plaintiffs’ unions encompass the historical purpose and form of marriage. Only the plaintiffs’ genders relative to one another prevent California from giving their relationships due recognition.

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as "the right to same-sex marriage" would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.
It's difficult to say what the Scalia-Roberts-Thomas-Alito legion of doom will contrive to find constitutionally suspect in yesterday's ruling; perhaps they'll reach deep in their sack of originalist fancy and declare that, contrary to their very sincere understanding of the intentions of the drafters of the 14th Amendment, allowing gay marriage violates George W. Bush's right to be considered the duly elected president no matter how or whether votes are counted. After all, Bush v. Gore only proximately installed the Bush-Cheney junta; in a broader sense, it struck down the right to be shocked or appalled at the lengths to which far-right hacks will go to reach the legal rulings they prefer and still label it "originalist."

For now, this is a victory for decency, freedom, and equality.


Weasel said...

He says, "Are civil unions really that horrible?" I would counter by asking, "Is allowing marriage for gays really that horrible?" In the other examples he cites such as polygamy and pedophilia, polygamy was common in the Bible. Several Old Testament "men of God" were polygamists: Abraham, Jacob, David, Solomon, and others all had multiple wives. In 2 Samuel 12:8, God offers to give David more if his wives and concubines were not enough. Not that this means we should bring back polygamy, but raising that as an example does little to bolster his slippery slope argument against gay marriage. And in the case of pedophilia, we have determined as a society that the practice of pedophilia is harmful to children. This is not the case with homosexuality. I'm still left struggling with why people are so against gays having total equality in our society; furthermore why people are so quick to adopt some parts of the bible as "The Word of God," yet ignore others.

Dale said...

Weasel, are civil unions so bad? Uh, I dunno. Are separate schools really so bad? Separate water fountains? In the abstract, it sounds fine. In reality, it's not. Equality works.

Dale said...

BTW, Weasel, I realize I am criticizing dipshit's view, not yours. I realize you are on my side against dipshit. My prior comment might have been unclear on that.