My fellow citizens,
To this dismay of constitutionalists, Proposition 8 somehow passed in California. Albeit the victory was statistically a narrow margin, over 5 million people articulating their religious viewpoint within the public sphere is dismaying to say the least.
Let's begin at the beginning, since its such a great place to begin. The words "Separation of Church and State" have become colloquial and contextual in this country. For social conservatives who utilize their Republican party for the opposite of its expressed philosophy of minimizing state interference in our everyday lives, the phrase refers to the government's inability to restrict them from limiting the civil amenities of others through the overt interjection of their religious beliefs into the law and public policy. For liberal constitutionalists (and the world liberal here refers to the political theoretical context, not the parochial and misleading American view), the phrase refers to the inability of a majority aligned under a banner of religion to dictate what happens in the lives of those who do happen to tout that same banner.
The next argument is generally that we are a Christian nation, thereby legitimizing the interjection of so-called "Christian" values into our legal system. The response to this is double pronged. The first prong deals with the fact that we are in fact not a Christian nation, as evidenced by the iconoclasts who are for the majority responsible for authoring the values of this nation - i.e. Thomas Paine and Thomas Jefferson. The two Tommy-boys actually advocated the fact that no church would ever have the ability to impress its opinion upon the United States federal or state government. In fact, this protection was integral to their philosophy, despite using Christian inspired verbiage. You see, they understood that their views were their own to keep at home should they suggest that different persons be mistreated under the law. I implore you to read Thomas Paine, so that you may see that his writings are even more radical, calling for the all out eradication of religion's presence in the public sphere.
The second prong draws upon that last phrase - public sphere. The idea of the public sphere is that it is (gasp!) - PUBLIC! Meaning that all persons enter it with the same advantages and rights. The tricky part here is how we legally enforce this policy. The writers of the constitution formulated a fantastic way to abate this problem. They actually utilized the constitution to demand that legislation would be based upon the common good, as opposed to majoritarianism. Fascinatingly enough, this implied that laws would be based upon reason and the constitution, even if the majority of people in the country decided that their own personal beliefs on a matter were absolutely and divinely true. That is to say, in more expressly plain terms, a thousand people may want the law to enforce their own moral or religious viewpoint, and only one may want the law to protect all people from being subject to such arbitrary legislation. The one person wins, because the one person is backed by the constitution. Political culture is the second prong, and political culture refers to the activity and normative social mechanisms utilized by the civil society in response to their government, and as influential over their government. When political culture becomes religiously charged, inevitably the interest articulation of the majority who are propogating such a norm begins to be adopted be elected official - hence, they are elected. Thus the cycle is reinforced, and the opinion of the many begins to take legislative preeminence over the constitution, should the two collide.
Later, this issue would be further elucidated by one Jeremy Bentham in a framework laying, hurried sense, and one John Stuart Mill in a full, ferocious, and ardent sense. They too were concerned about an alarming dynamic in a democratic society, which they referred to as tyranny of the majority. They perceived it to be a gross injustice that political culture could superceed the constitution and allow for social norms to become legally protected (slavery not being the least of these, among the treatment of women and - double gasp! - homosexuals). Mill discusses the idea of harm versus offense, and the law should be solely based upon harm, as legislating against offense would actually use the law to attack as opposed to protect.
Now there is an interesting point - the law is intended to protect as opposed to attack. The first issue that could be discussed herein is the idea of Isaiah Berlin that refers to positive and negative liberty - that is, the difference between "freedom from" and "freedom to". We could use this model to attack the social conservative stance, as the Republican party is supposed to advocate freedom from, as opposed to freedom to. But that kind of partisan pandering is divisive and unnecessary, albeit attractive in the wake of this proposition. Instead, we will use to this concept to the draw upon the proper role of the law. To legislate based upon "freedom from" implies that your government is minimally involved in matters of the private domain, and even the public domain. State action is legitimized insofar as it is a minimal regulatory process - it does not dictate much. "Freedom to" goes a bit further, and would advocate the idea that citizens are afforded certain amenities based upon their respective constitution or like document, and that the role of the state is to take legislative action to ensure that such amenities are provided and protected.
Curiously, the passage of proposition 8 neither protects our freedom to nor our freedom from. It attacks, it divides, it segregates, and humiliates. It prohibits both the freedom form and the freedom to by suggesting that "separate but equal" laws persist, lending legal credence to discriminatory practices and prejudicial impulses. It compromises the public sphere by limited those who are able to enjoy access to its goods.
Which invites the next point. Marriage is a public good at this point in time, moderated and regulated by the state. Ergo, we face a baffling contradiction of interest. Given the fact that marriage is a public good that refers to the private sector, how can we possibly allow anyone but the law to define whom may have access to it? It is constitutionally unjust to prohibit some but not others from the right to marry based upon localized beliefs. This is not to suggest that those beliefs should not be protected - they are, via that tricky separation of church and state clause we earlier discussed. It is, however, to overwhelmingly demand that the the public sphere remain welcoming to all citizens who have yet to violate the conditions of citizenship. What we are suggesting by passing bans on marriage between homosexuals is that homosexuals, by virtue of being homosexual, are not full citizens.
There are several points that could now be expanded upon - i.e. the idea that marriage should be solely an issue of the private domain without any state investment or interest in the matter, thereby allowing you to define marriage as you like, without having to recognize anyone else's opinion of it; the violation of the separation of church and state exacted by the passage of proposition 8 and the vocal support of churches in telling their parishioners how to vote on the matter; the absurdity of words like sanctity being used as a legal argument when they are clearly the domain of the private opinion sector; etc. The argument presented by the other side revolving around how disgusting the practice of homosexuality is, the fact that a civil union is the same in effect as a marriage, or how there are proven adverse effects of homosexuality on children could also be responded to - but to even entertain such claims is to afford them validity.
These are to be neglected more over so to abstain from unnecessary digression.
However, the point that should be vehemently emphasized herein is the comparison between the treatment of homosexuals to the historical treatment of women, minorities, and the disabled just to name a few. All of these groups have been afforded the category of suspect class under the law, which dictates that any issue surrounding their treatment within the public sphere is given the utmost level of legal scrutiny given the history of discrimination that these groups have respectively faced.
Homosexuals, despite an atrocious history of marginalization, abuse, and overall discrimination have yet to be classified as suspect class. Thus, heinous discrimination has been able to persist as legally predicated due to the inaction of those who are aware of the blatant unlawfulness of this activity.
Baffling. Infuriated. Embarrassing.
Now is the time for action. Now is the time to stand against this issue. We cannot make the same mistake that we did in the previous campaign by making this a moral issue. Certainly there is an intrinsic question of human dignity involved, but if we expect such an argument to be heeded we are grossly deluded. We must make this a legal issue, because as a question of constitutional law we cannot be defeated. This piece was brief and without the extensive evidence of court cases and incidents that support this argument. With those in the hands and on the tongues of powerful leaders, and the support of a lucid civil society interested in the law as opposed to the fearful pangs of the majority, we can mobilize, organize, and defeat injustice and discrimination.
Yours in Earnest,
Kathryn R. James
