Sauce for the goose

Last updated on: November 12, 2008 at 5:07 pm by Fred Clark

Sauce for the goose 2008-11-12T17:07:14-05:00 Fred Clark

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I don't want to rehash the whole normative vs. descriptive debate we had over the term "un-American," but voters in California disappointed me last week by behaving in a very un-Californian manner and voting for Proposition 8.

This was a ballot measure attempting to clarify the meaning of the state's constitution, restricting the application of certain "rights" to only certain Californians and not to others.

The word rights is in scare quotes there necessarily because that word cannot be made to do what Californians are trying to make it do there. Rights, by definition, are rights for all. If a "right" exists for me, but not for thee, then it isn't really a right at all, merely a privilege.

And please note that this is what has happened here. For all the scaremongering "defense of marriage" language used by supporters of Proposition 8, the passage of this silly measure actually dealt the institution a severe blow. What had been a right is now only a privilege — a privilege that the state is free to withhold as it sees fit. Yielding that kind of power to the state is not the sort of thing that a free people ought to be doing if they wish to remain a free people.

The next thing that needs to happen has already begun — this majority vote restricting a minority must be challenged again in the courts. California's highest court had already ruled that the state's constitution does not permit the restriction of marriage "rights" to some Californians and not to others. It's not clear to me why or how Proposition 8 would change that basic principle. The proposition was written, introduced and campaigned for as an attempt to change that ruling, but piling such after-the-fact interpretive statutes on top of the constitution doesn't strike me as the same thing as actually amending and altering that constitution, so I'm not sure what Prop 8 really changes.*

Imagine, for example, that California's legislature had passed a law stating that the Irish were forbidden from getting driver's licenses. Such a discriminatory law would have been quickly voided by the courts. Anti-Irish bigots would have decried that ruling as "judicial activism," but that's an epithet, not an argument. The state's constitution simply will not tolerate new law that attempts to exclude particular classes of people from the same rights and protections available to everyone else. Voters might well respond to the court's decision by passing a ballot measure redefining a "driver" as a "non-Irish person," and thus excluding by semantics those whom the constitution did not previously allow them to exclude by statute, but I can't imagine the courts finding this transparent ploy convincing. This hypothetical anti-Irish proposition wouldn't be any more constitutional or legitimate than the shamefully non-hypothetical anti-gay Proposition 8 is.

Another frightfully ugly aspect of this whole affair has been the willingness and eagerness of Prop 8 supporters to lie in support of their cause. Atrios calls these folks "Liars for Christ," and the term is apt. This is a common and dismaying consequence of what James A. Morone calls "The Corrosive Politics of Virtue." One starts by demonizing one's opponents then, having established that they're demons, one can justify accusing them of all manner of absurd evils. What's a little white lie — or two, or 20 — when you're battling demons? Truth is a luxury you can't afford when protecting innocent babies from bloodthirsty babykillers. When you're defending your marriage against the barbarian others out to destroy the very notion of the family then you can't be expected to fight with one arm tied behind your back by the shackles of honesty, facts or reality.

Supporters of Proposition 8 were forced to resort to Lying for Jesus — pastors will be jailed! your church will be forced to conduct gay weddings! your organist may become even more flamboyant! — because they weren't able to articulate any honest basis for opposing this right as an equal right. The 'vixen and I got our marriage license on the same day that George Takei and Brad Altman got theirs. The wedding of George and Brad neither picked my pocket nor broke my leg, so what possible cause would I have had to object to it? What reason would I have to deny George and Brad the same happiness that my wife and I were permitted to enjoy? Such exclusion makes no sense unless we appeal to some imagined grave consequences such as those dreamed up by the Liars for Christ.

And here again we see that basing policy on imaginary fears and imaginary grave consequences leads to different, but very real, grave consequences. When we choose to make laws based on imaginary fears, we see our own rights reduced to mere privileges. This is what always happens when we place fear on the throne.

Anyway, what I'd like to see happen next in California is perhaps a bit too theatrical and maybe a bit too sarcastic. (Sarcasm isn't often constructive, people keep telling me. And maybe they're right, but it can be *in-*structive. And anyway it's cathartic. And fun.) I'd like to see a signature drive to get Proposition 8.1 on California's next statewide ballot. Proposition 8.1 would finish the work begun by Proposition 8, clarifying the meaning of the terms in the state's constitution to explain that the right of marriage doesn't apply to heterosexuals either.

I think supporters of Prop 8.1 should enthusiastically embrace the same dishonest scare tactics employed by Prop 8 supporters. Why, if any old straight couple is allowed to marry, think of what might happen in your church! Catholics might be forced to remarry divorced straight people! Your church might be forced to conduct Jewish or Hindu weddings! Just think of it — yogurt and honey and a chuppah right there in your sanctuary! And if you tried to turn them away, you'd go to jail!

Either the absurdity of this would illustrate the absurd logic of the original Prop 8 or, more likely, it would go right over people's heads and the same frightened voters who supported the original measure would sign up to support Prop 8.1. With the proper wording and — more importantly — the proper inflection of feigned disgust and sanctimony ("they want to marry people from a completely different gender!"), you could probably even collect signatures in the same churches that helped get Prop 8 on the ballot.

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* Correction: Apparently, I have this wrong (see comments for details). In California, it seems, a simple majority of voters can actually change the state's constitution. They don't even have to worry about whether their changes make sense, or whether they contradict, say, the equal protection clause or any other part of the U.S. Constitution. You get 50.001 percent of the vote in California and you can make that state constitution say whatever you like. I can't help but think of this.

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