In the wake of the court decision declaring California’s plebiscite against gay marriage unconstitutional, it might be of interest to step back and look at the state of our jurisprudence and the state of our liberty.
In 2006 the Boston Catholic diocese suspended services for adoption because they were discriminating against homosexuals. In 2008 at New Mexico civil rights commission ruled that a professional photographer engaged in private business was guilty of sexual orientation discrimination for refusing to photograph a lesbian ceremony. In New Jersey the venerable Ocean Grove community has been compelled to permit homosexual weddings on its facilities because the state civil rights division so ruled.
One cannot survey the sweep of American history without understanding that race is the great issue for our nation. It has been called America’s original sin and one might say that with all the soaring rhetoric of the Declaration of Independence, Thomas Jefferson papered over that sin. We fought a Civil War over slavery and modified our Constitution with the Reconstruction amendments. We waged a battle over civil rights to end segregation and memorialized the vanquishing of Jim Crow with the Civil Rights Acts and in our court decisions. Out of these searing experiences came more than constitutional amendments, court decisions, and laws, we profoundly changed our culture.
The idea of racism has been institutionalized in our culture as something that is repugnant and utterly hateful. So it is not surprising that proponents of homosexual rights including homosexual marriage invoke the civil rights struggle at least by way of analogy. But these analogies are not the sole property of the homosexual side of the argument. The president of the National Organization for Marriage, sees a distinct danger to liberty from equating sexual preference with race, Maggie Gallagher has observed,
“Once the law endorses this principle, traditional religious communities are going to be treated like racists if we act on and promote our countercultural view [that] there’s something special about unions of husband and wife. Ocean Grove is the tip of a very large iceberg. Take it seriously.”
Evidently, Maggie Gallagher knew what she was talking about because she was an original proponent of California’s Proposition Eight which the court has just struck down.
Why should the law have an interest in whether private enterprise provides separate but equal services to homosexuals? The answer is because the homosexual lobby has succeeded in writing statutes which prohibit discrimination against homosexuals. This sounds reasonable on its face, after all we prohibit discrimination based on sex, age, religion, ethnicity and race.
The rationale for these laws is that the discrimination is irrational as well as harmful. It is irrational because it assumes that every member of a class always behaves in a manner consistent with the stereotype of that class. Thus, if we fail to hire members of a given race because we think those people are shiftless, feckless, or dangerous, we might be right in our judgment as far as a statistical majority of that race is concerned. But the stereotype will never apply to 100% of the individuals in the race. There will always be individuals who break free of the stereotype, just as I intend someday to prove on the dance floor.
So from a sociologist’s or a statistician’s point of view, discrimination based on race is irrational. But it might not be irrational from a business point of view. If, for example, an employer believes that one race that is statistically more prone to crime than another, an easy way to eliminate a source of employee crime is to avoid hiring individuals of that race. It’s a very cheap screening process which, although not perfect, reduces risk at no apparent cost to the employer except perhaps in missed opportunity costs because he passed over a superior individual who performs counter to the stereotype. There may be other very rational reasons for employers to commit racial discrimination such as customer acceptance, and co-employee acceptance, to name a couple. But the law prohibits this kind of discrimination.
The law prohibits it ostensibly because politicians have calculated that the harm done to the individuals so stereotyped, whether rightly or wrongly, far outweighs any advantage devolving to employers who practice discrimination. This is a judgment call, a value call, made by politicians and imposed on society. The politicians have said: we arrogate unto ourselves the sole right to make this judgment and forbid you from making this very same judgment on penalty of criminal sanctions. We do not care whether your business sense tells you it is rational for you to discriminate based on race, we tell you that the societal cost is too high; our value trumps your value; nor do we care that we are depriving you of liberty when we deprive you of the right or power to discriminate; as a matter of fact, politicians will routinely say that there is no liberty to discriminate based on race because the act is so heinous. Again, this is a value judgment. When the emotion is wrung out of the issue, we must concede that the liberty of the employer is sacrificed to accommodate a more favored value.
Interestingly, the law permits one to discriminate based on race in the choice of a spouse. Evidently, society considers it a higher value to respect the liberty of the bigots who refuse an offer of marriage based solely on race than to require them to marry. On the other hand, the law has said that society may not prohibit miscegenation and must respect the liberty of people to marry who decline to discriminate against a suitor based on race. Not too many years ago the failure to discriminate was considered criminal by some jurisdictions. (Anti-miscegenation statutes overturned by the Supreme Court in Loving V. Virginia, 1967). So that which the employer may not do is absolutely ok for the lover to do, in fact, society may not interfere with the lover bent on doing that which is criminal if done by an employer. Clearly, the idea of legally prohibiting discrimination is a moving target as values shift up and down the scale depending on the circumstances and the ebb and flow of political correctness.
So I have lost my liberty as an employer to discriminate on the basis of race but in nearly the same time frame I have gained liberty to marry without being forced to discriminate on the basis of race. I have also retained a liberty to decline to marry because I choose to discriminate on the basis of race.
Well, this is certainly going to get complicated. First, it is not clear whether or not the law compels me to discriminate on the basis of sex when I marry. It has recently become more clear by virtue of the Supreme Court case Lawrence v. Texas (2003) that I have liberty to discriminate on the basis of sex about whom I might choose to (yuck) sodomize. In other words, the state cannot prohibit me from sodomizing someone of the same sex providing I do it in private (the old “don’t frighten the horses” test). So in the ever cascading values game, I am at liberty to sodomize whom I please but in about 48 jurisdictions at my last count I am not at liberty to decline to discriminate in marriage against persons of my own gender. The law compels me to discriminate against them if I want to marry them but not if I just want to bugger them.
Evidently, the Supreme Court permits buggery in private because it places a high value in the right of privacy. The Supreme Court so far has not chosen to invalidate laws against homosexual marriage, presumably because it does not value the right of homosexual marriage as highly as it does the right to bugger in private.
But fixing on privacy as the key to understanding these distinctions comes a cropper if I try to invoke the doctrine to permit me to bugger either sex when the objects of my attention are underage. Apparently, the need to protect the underaged from my perversity is greater than the interest society has in safeguarding my right to sodomize in private.
In some places state law apparently has no interest if I choose to bugger a horse or even if I choose to be buggered by a horse. Other states are gravely concerned about my equine perversities, although it is not clear whether they are more concerned to protect me or the horse. It seems we can’t get away from legislators’ preoccupation about frightening the horses.
Opponents of gay marriage have invoked the slippery slope argument saying that to permit me to marry my beloved (human) of the same sex opens the floodgates and would permit me to engage my sordid proclivities to engage in bestiality, polygamy and incest. Practices from which I am presently barred in most jurisdictions even if I am discreet enough to do it only in private. Slippery slope arguments rarely carry the day because it is human nature to worry about tomorrow’s problem tomorrow.
But let’s turn the slippery slope argument around. When one moves control over homosexual marriage from the state to the federal justice system and one applies a federal constitutional rather than state legislative standard, one in effect is elevating a new interpretation of the federal Constitution over the plain and expressed will of the people of the state, in this case California. From time immemorial, the memory of man runneth not to the contrary, it has been the will of the people which has decided these issues. If one disenfranchises the state from prohibiting gay marriage because one has found a federal constitutional right to gay marriage, one has effectively eliminated the expressed democratic desire of the people to determine these matters. It says in effect that there is no rational basis to let the people decide the matter, it says there is a higher value, a federal constitutional value which incidentally we judges have just discovered, which trumps the democratic will.
So the slippery slope argument is not just a broadside which says if you permit gay marriage you cannot in reason prohibit polygamy, it is an argument which says that you have taken away the constitutional and legal foundation which from time immemorial vouchsafes the power and the responsibility to the people to regulate these matters to their satisfaction. If there is no rational justification for prohibiting gay marriage, as the District Court judge has found, it can no longer be a matter of legal logic to say that the people have retained their power to prohibit polygamy.
It becomes a matter of political correctness exercised from the federal level. If there is no rational basis to prohibit me from marrying my male friend, there is equally no rational basis from prohibiting me from marrying my male cousin, or, two or three of my male cousins, or my female cousins. Or, if you’re concerned about DNA implications, there is no rational basis to prohibit me from marrying several of my male and female friends who are not related to me.
The law has put itself in the place where the judges insist that a newly found federal constitutional right to gay marriage is enough to overcome the will of the people concerning marriage but since we, the very same judges, have not discovered a concomitant federal constitutional right to commit polygamy, we shall suffer the will of the people on that issue to continue to prevail, at least until we discover that right - which might occur any day now.
The point of all this is not just to demonstrate that the law weighs one value against another and almost always prefers one value over another. The point is that to prefer one value over another is another way of saying that someone just got deprived of liberty. It is important that we do not let leftists change the subject. It may be perfectly good to deprive bigots of the right to discriminate but let not our indignation over discrimination based on race becloud our understanding that we are sacrificing liberty for some other value which might be very important to the person deprived. This can become significant when one takes the next step and deprives an innocent person who has not engaged in discrimination of equal opportunity to obtain jobs or academic placement. Liberals get away with depriving these innocents of the equal protection of laws because they have succeeded in shutting off the idea of liberty and the need always to preserve it.
It is not really fashionable today to talk about liberty. In fact, we have come to the place where it is politically incorrect to talk about liberty in the wrong context. When one considers, as I have tried to do, that political correctness can make for bad law it is almost impossible to describe the situation without being politically incorrect.
