Friday, September 23, 2005

Passage of Prop. 22 is a Weak Argument to Use in Bolstering Marriage

During the debate over Assemblyman Leno’s “Gender-Neutral Marriage” bills, AB 19 and AB 849, some of my colleagues used the argument that since the voters of California passed Prop. 22 with the understanding that it limited marriage to between one man and one woman, we had no business taking the matter up in the Legislature.

Relying on the results of a vote of the people to define or redefine immutable principles sets us on a perilous path.

The popular vote is a fickle mechanism, subject to all sorts of momentary passions and manipulation. Do we really want to maintain that a vote of the people can define marriage? What about other bedrock issues that aim at the core of the American understanding of humanity or Natural Law, such as slavery?

Abraham Lincoln confronted just such an issue during the 1858 race for U.S. Senate in Illinois against Stephen Douglas. In the seven famous Lincoln-Douglas debates Judge Douglas argued that the popular vote should decide the slavery question in the territories. Lincoln demurred, asserting instead that slavery was wrong and no number of votes by the people could change that.

For his support, Lincoln relied on the Declaration of Independence and its claim that “All men are created equal…” Lincoln held that the Declaration’s claim of human equality was an assertion for all people for all time and in all places.

This claim comes from a Natural Law understanding of Man as a creation of God and thus created equal before the eyes of God. Any other understanding of Man and the social contract, such as that held by the Progressives who deny such truths, relying instead on the precepts of Darwin, Hegel, and Kant, leads inevitably towards gulags, concentration camps, slavery, and genocide. After all, if humans are unequal in their worth (i.e. subhuman) why not dominate and exploit?

The Constitution, being a practical political document, did not live up the promise of the Declaration in 1787 as to do so would have meant the immediate dissolution and death of the new nation. The Constitution made three allowances for the “peculiar institution” of slavery. Even so, and especially after the Dred Scott decision in 1857, Lincoln relied on the Declaration, the foundational document that preceded the Constitution, as his basis for arguing that slavery was unjust regardless of a popular vote.

President Lincoln was to complete this thought during the Gettysburg Address when he said, “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.” In this statement, we see that certain principles transcend all things. Thus, a vote of the people in a democratic republic based on rule of law cannot override certain foundational rights or truths.

Allowing same sex marriage, or marriage under Islamic law (one man to up to four women), or marriage between siblings, or marriage between an adult and a ten-year-old – none of these are marriage, nor can they be under Natural Law as originally conceived of by the Founders and accepted in Western tradition for millennia.

The proper argument to be made in a republic founded on the principles of the Declaration of Independence is that we cannot make right what is inherently wrong. Abraham Lincoln made this argument time and time again.

Most simply put, traditional marriage is not discriminatory at all: any two people of the opposite sex who are old enough and not closely related can marry of their own free will. They can marry whether or not they may have feelings towards those of the same sex – so long as they marry someone of the opposite sex. It is very simple and very nondiscriminatory.

Lastly, if we were to pass into law “gender-neutral” marriage, can any of us really deny the inevitability of a believing traditionalist Muslim bringing a Constitutional suit via the Fourteenth Amendment that his First Amendment rights for free exercise of religion were being violated? The ACLU would likely lead the charge.

In closing, it is worthwhile to recount that the Republican Party’s 1856 platform included the principle of opposing, “those twin relics of barbarism – Polygamy and Slavery.” It might be argued that polygamy or gender-neutral marriage is a personal matter of sex and family. Regardless, such personal matters impact society. And, with increasing evidence from Europe that a loosened definition of marriage leads to a dramatic increase in out-of-wedlock births, divorce, and other social ills, can we, as a nation, really afford to declare what is inherently wrong is instead right? Is behavior such as polygamy or gender-neutral marriage a natural right? This is the key question as natural rights are those things governments are supposed to secure. (“That to secure these Rights, Governments are instituted among Men…”)