Thursday, January 15, 2009

Close Enough Isn’t Good Enough

George F. Will really can’t argue effectively that California’s Prop 8, the referendum that eliminates same-sex marriage rights, is a good law, so he uses the typical tactics that debaters use when they get down to their last straws: he attacks the attackers of the law — in this case California Attorney General Jerry Brown — and he makes exceptions to his own beliefs in order to shore up his shaky argument.

Now comes California’s attorney general, Jerry Brown — always a fountain of novel arguments — with a 111-page brief asking the state Supreme Court to declare the constitutional amendment unconstitutional. He favors same-sex marriages and says the amendment violates Article 1, Section 1, of California’s Constitution, which enumerates “inalienable rights” to, among other things, liberty, happiness and privacy.

Brown’s audacious argument is a viscous soup of natural-law and natural-rights philosophizing, utterly untethered from case law. It is designed to effect a constitutional revolution by establishing an unchallengeable judicial hegemony. He argues that:

The not-really-sovereign people cannot use the constitutionally provided amendment process to define the scope of rights enumerated in the Constitution; California’s judiciary, although established by the state’s Constitution, has the extra-constitutional right to supplement that enumeration by brooding about natural law, natural justice and natural rights, all arising from some authority somewhere outside the Constitution; the judiciary has the unchallengeable right to say what social policies are entailed by or proscribed by the state Constitution’s declaration of rights and other rights discovered by judges.

What is natural justice? Learned and honorable people disagree. Which is why such consensus as can be reached is codified in a constitution. But Brown’s reasoning would make California’s Constitution subordinate to judges’ flights of fancy regarding natural justice. Judges could declare unconstitutional any act of Constitution-revising by the people.

“Natural law” is also the argument that most anti-abortionists use in arguing against Roe v. Wade; the life of a foetus supersedes the rights of the woman bearing it, and the rights of the unborn are equal to those of any other citizen even though the Constitution clearly states that rights of citizenship aren’t established unless or until a person is born in the United States or naturalized through the due process of law. Simply put, Mr. Brown is saying that there are some rights that are so important that they can’t be subject to the political whims and winds of popular opinion. For example, if civil rights and voting rights for African Americans were put to a vote by referendum in 1964 and 1965, chances are very good that they would not have passed in many states, and not just those in the South. I’m not sure that Mr. Brown isn’t going out on a limb here, but I also don’t think that it should be given the brush-off that Mr. Will gives it. If the idea of natural law doesn’t apply to the rights of same-sex couples who are otherwise entitled to the same rights and responsibilities of everyone else, why should it apply to a foetus?

Mr. Will then does a bit of pretzel logic on the idea of the people voting on laws.

Passing laws by referenda is an imprudent departure from the core principle of republican government — representation: The people do not decide issues, they decide who shall decide. But the right of Californians to make laws through the direct democracy of referenda is as firmly established as it is promiscuously exercised.

This is his thinly-veiled way of saying, “Well, I don’t like it when the people make the law, but in this case, I like the result, so it’s okay.” Whether he knows it or not, he’s just made a very good point as to why Prop 8 should be overturned: the basic rights of the citizens shouldn’t be subject to the whims and the fund-raising capabilities of the Mormons, and it doesn’t matter whether or not you approve of the people who are making the pitch or who are the targets of the vote. And just because referenda is “firmly established” in California law doesn’t make it right. Slavery was pretty firmly established, too, before 1864.

Finally, and most patronizingly, Mr. Will tells all us queers to just be patient. This time the proposition was passed narrowly as compared to the original Prop 22 in 2000 that established the law defining marriage as being for straight people only.

Just eight years ago, Proposition 22 was passed, 61.4 to 38.6 percent. The much narrower victory of Proposition 8 suggests that minds are moving toward toleration of same-sex marriage. If advocates of that have the patience required by democratic persuasion, California’s ongoing conversation may end as they hope. If, however, the conversation is truncated, as Brown urges, by judicial fiat, the argument will become as embittered as the argument about abortion has been by judicial highhandedness.

I think the same argument was made in the 1950’s when the Supreme Court ruled in Brown v. Board of Education: “You colored people should just be patient, we’ll get around to giving you your equal rights in due time, so stop being so damn pushy about getting them right now just because those nine old men said so.” Yes, and if they had, they’d still be waiting.

Giving a minority community that contributes fully to society every way, including paying our taxes and doing our duty as citizens while being denied the fundamental equality of the law is wrong, and Mr. Will knows it. Giving us a pat on the head and the gentle admonishment to wait our turn isn’t good enough.