If ever the partisans of original intent needed a better argument to use against their activist brethren, it is the existence of Proposition 8. Just so no one has any illusions, it seems fairly obvious that this proposed constitutional amendment would not exist if the California Supreme Court had not made the gross overstep of overturning Proposition 22 against all legal precedent, traditional conceptions of marriage, and Democratic theory. For those who think society’s vision of morality flows from the judiciary, the fact that there is a constitutional amendment written solely for the purpose of backlash should give pause.
This backlash is richly deserved. Whatever one thinks of gay marriage qua gay marriage, there should be little argument that the decision which made marriage a “fundamental right” is sheer incoherent nonsense. The decision is based almost entirely on pop sociological blather about “respect and dignity”, with barely a reference to actual Constitutional foundations, either in California’s Constitution or in the Federal Constitution. Setting aside the ahistorical notion of a “right to marriage”, any judge who presumes to read his or her own subjective ideas about “respect and dignity” into any legal document deserves to be censured. Where is the respect for difference of opinion or for the dignity of history and precedent? Nowhere to be found. This is why, even if it fails to pass, Proposition 8 will be a force for the better, since it will send a strong warning to the Supreme Court not to stick its legally irrelevant opinions where they’re not wanted.
The opponents of Proposition 8 believe that it should not be the Government’s role to legislate who can and cannot get married. They are entirely correct, but they don’t go far enough. It is no more the Government’s role to impose by judicial fiat who cannot and cannot get married. This Proposition is merely proving the axiom which Barry Goldwater cited so long ago in his classic work “Conscience of a Conservative” – that the same government which can ban discrimination with respect to some characteristic can also mandate discrimination with respect to the same characteristic. As such, the same liberal voices who want to stop Proposition 8 are in some sense complicit in its existence, since it was their ranks who made Proposition 8 necessary in the first place.
But setting aside the blame, one still has to ask: just because the Government can mandate discrimination on the basis of sexual orientation, does that mean it should? The answer is no. Mere capability is not a mandate. Therefore, one has to examine the arguments both for and against Proposition 8 solely on their merits. If this is done with an eye for argumentative consistency, it becomes abundantly clear that the Proposition should fail. There are two reasons for this – firstly, the amendment is designed in a manner which runs counter to the purpose of constitutional amendments and secondly, the amendment is not remotely different in principle from the Supreme Court decision that preceded it, which was the biggest mistake in this whole process.
Firstly, with respect to the structure of the amendment, a few things need to be said. Most Constitutional amendments, both in California and at the Federal level, are done with an eye toward restricting what the Government can and cannot do. They are seen as discrete limitations of State power. By contrast, this amendment seeks to restrict not the State, but the activities of private individuals. That is, it would make it illegal for private churches with tolerant views of homosexuality to grant the legal title of marriage to homosexual couples. This is not the purpose of a Constitutional amendment, and nor should it be. The last experiment with this sort of Constitutional behavioral engineering was prohibition, and that failed miserably.
Proposition 8 may possess different incentive structures, but in principle, it is no different. If all the bill did was overturn the idea of a right to marriage, the necessity of its passage would be tautological, but that is not what it does. It takes away the right to determine the definition of marriage from local governments and private churches and places it forever in the hands of the State.
This leads neatly into the second problem with Proposition 8 – it is in no way different in principle from the Supreme Court decision it seeks to counteract. Both the Court and Proposition 8 place the definition of marriage with the State government. This will necessarily lead to the smothering of local concerns over marriage law and possibly invoke the same sort of miniature Constitutional crisis brought about by Gavin Newsom. The amendment takes the most clumsy and objectionable approach to counteracting the Court: it simply asserts its own vision of morality over the Court’s, rather than denying that the State needs to stick its poisonous fingers into marriage in the first place.
Moreover, a Constitutional amendment simply begs the question. The body vested with enforcing California’s constitution is the Supreme Court, after all, and if they found a way to twist the State constitution into a pretzel once, they’ll find a way to do it with this amendment. At that point, whatever agency this amendment tries to enforce goes away and one runs the risk of a full-scale war between the Court and the people. Better to avoid this altogether. Proposition 8 has served its purpose as a warning shot against judicial activism, but let’s make sure it stays a warning.