Today's Palm Springs Desert Sun editorialized today urging the California Supreme Court to overturn Proposition 8. In three paragraphs appearing in various parts of its editorial, The Desert Sun nailed the issue.
The editorial notes that “Proposition 8, the voter-approved initiative to ban same-sex marriages, only serves to allow the fundamental constitutional rights of one group of people to be stripped away by a majority vote.”
“If,” the editorial goes on to warn, “Proposition 8 stands, it will set a bad precedent and could endanger the rights of other groups. This is an issue that is more about how the law is applied than about marriage. The California Supreme Court must ensure equal protection of its residents under the law.”
Finally, the editorial points out a critical truth about equality before the law: “We don't have true civil rights if some of us aren't entitled to them.”
The hardest, truest test of a democracy is not how well it takes care of those who are in the majority, but how well it accommodates those who may be in the unpopular, dissenting, or disliked minority. This is true whether we are speaking of the rights of the religious dissenter, the immigrant, the political opponent, or the GLBT person.
That was the prime reason a constituent, a self-identified “cultural conservative of color,” gave me to explain having voted against Proposition 8. Now I know this constituent thinks my sexual orientation is not “normal” or “moral,” and that the constituent entertains a “yuck factor” about what LGBT people “do in bed,” yet this constituent also understands one political reality very well: “If they can come after you today, they can come after us tomorrow.”
That’s well-considered self interest at work.
And well-considered self-interest is at the core of how any democratic republic works. James Madison understood that perfectly. That’s why the U.S. Constitution he was instrumental in drafting has stood up so well across more than two centuries of national growth, civil and foreign wars, and vast social change.
Of course, supporters of Proposition 8 have tried to couch the discussion in “moral” terms, about “protecting” families from the presumptively immoral inroads of GLBT people into the “sacred” institution of marriage, which -in their view- is either too fragile to be allowed to LGBT people, or so sacred that it has to be reserved to straight folks.
But somewhere along the line, the proponents of Proposition 8 forgot a fundamental reality: in America, every single one of us is in some kind of minority, whether racial, ethnic, religious, sexual, or other (southpaws take note), and thus in potential danger from the majority. In such a disparate society, our own well-considered self-interest ought to restrain us from legislation that targets the civil rights of groups we may not like lest our own group become targets of the next wave of scapegoating or wedge-issue politics. As Benjamin Franklin put it, “we must hang together, or we shall surely hang separately.”
We’ve seen scapegoating, discrimination, and wedge issue politics happen before.
Our own Californian history demonstrates a disturbing willingness on the part of California voters to write bigotry and discrimination into the Constitution or laws of the Golden State. Virtually without exception, these laws have had to be overturned by the courts:
● In 1879, the framers of our State Constitution included a prohibition against Chinese being employed.
● The 1913 Alien Land Act, aimed at Chinese, Japanese, Koreans, and subcontinental Indians, prohibited them from owning land.
● Proposition 14 (1964), which would written into California’s constitution a right of racial discrimination in housing.
● Proposition 187, ostensibly directed against illegal immigrants, but widely perceived as targeting California’s Latino community.
In each of these cases, California cast aside the better angels of its nature, cutting a great swath through the constitution in order to diminish the rights of unpopular minorities.
Proposition 8 supporters seek to cut a similar swath through the constitution to diminish the rights of LGBT people much as, in Robert Bolt’s play A Man for All Seasons, one of the characters declares his willingness to “cut down every law in England to get at the devil.”
In a devastating rebuke, the play’s protagonist, Sir Thomas More, asks:
"What would you do? Cut a great road through the law to get after the Devil? ... And when the last law was down, and the Devil turned round on you - where would you hide, ... the laws all being flat? This country is planted thick with laws from coast to coast, Man's laws, not God's, and if you cut them down ... do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety's sake!"
Perhaps an extreme formulation, but it aptly encapsulates the importance of cleaving to the rule of law in the face of the easy temptation to misuse the law for selfish ends, or to do harm to others in the service of a particular viewpoint or ideology.
The freedom of all of us is a function of the freedom of one. One may not support same-gender marriage per se, yet still understand that Proposition 8 is a bad idea. One may have that “yuck factor” about what GLBT people do together, yet still believe society as a whole is endangered by writing overt discrimination of any kind into law.
In our conversation, my socially conservative constituent of color happened to mention the famous “I didn’t speak up” poem, which has become so much a part of our culture that many quote it without even knowing its source. It comes from Pastor Martin Niemöller, the courageous German Lutheran clergyman (and sometime World War I U-Boat commander) who dared to stand up to Hitler:
"In Germany, they came first for the Communists,
And I didn’t speak up because I wasn’t a Communist;
And then they came for the trade unionists,
And I didn’t speak up because I wasn’t a trade unionist;
And then they came for the Jews,
And I didn’t speak up because I wasn’t a Jew;
And then . . . they came for me . . .
And by that time there was no one left to speak up."
“If,” my constituent asked, “I don’t speak up for you when they try to take away your rights, how can I hope you’ll speak up for me if they try to take away my civil rights?”
So, I concur with the Desert Sun. The Supreme Court should strike down Proposition 8, for all our safety’s sake.
