Civil rights in America is a trite concept that has little bearing on actuality and instead is a focus on an innate desire people have to get their own way. The problem that many people on both sides of the political spectrum make is that they assume "civil rights" is a defined set of protected attributes that any person is allowed. They believe that the civil rights movement is simply a method whereby those rights that have always existed are not blocked by any other power.
The problem with this idea is that no inherent definition of civil rights exists in terms of societal recognition of any norm. Civil rights don't somehow validate a human's ability to choose, they simply imply societal recognition of the validity of a choice.
The civil rights movement of the 1960s didn't clarify an existing definition of civil rights that always existed, it rewrote what was included in the definition. When Rosa Parks refused to give up her seat, she didn't claim an inherent right that had always been hers, she simply set in motion a government recognition of her ability to sit where she chose. Rosa always had the ability to sit down as she saw fit, but after the civil rights movement, the government changed its stance on taking action against her for sitting while a white person stood. Her inherent ability to sit didn't change, only the government’s approval of what she did.
In California, no inherent ability was removed when Proposition 8 was passed, only the government recognition of something people already did. Homosexuals are not being blocked from living together, all that they lose is societal recognition of "marriage". Marriage, though, is a purely societal creation. While marriage in the religious sense could be argued to be more than a simple definition, in the legal sense it is only a legal recognition - the same as the recognition of the president, a voter and a felon. All of these definitions are societal norms applied as they so desire. Nobody has a fundamental, inherent civil right to have their vote counted on anything (for example, I can't go to Japan and vote on the next prime minister - there's simply no inherent part of being me that allows for that), nor do people have a fundamental right to be awarded the title of president. Additionally, nobody has a fundamental right to be considered a "felon" simply because they wake up one morning and decide they want the government to recognize them as such.
A legal definition certainly carries important weight and affects how a person lives their life. Once Barack Obama takes the oath of president, he effectively will be treated different by society because of that title (or legal definition) that he holds. To become president, though, he had to follow the seemingly arbitrary procedures setup and adhered to in our country - primaries, campaigning, electoral college, etc. He couldn't just decide that he wanted to be president and he wanted just the popular vote to decide that - Al Gore wanted that to happen, but look at where that left him. In that same vein, if you want to have the legal definition of "felon", you have to go and break a law and be prosecuted and be found guilty of a felony. It's not something you can do in a day and it’s not all in your control, either. If the prosecutor decides that all she wants to prosecute you for is a misdemeanor, your dream of becoming a felon will have to wait for another day.
Where does this leave gay marriage? The answer is that it leaves it exactly where it was before - a legal definition that can be either adopted or rejected by the voters. Are there benefits/detriments bestowed upon people because of the legal title they hold? Of, course. Presidents get to live in the white house and felons get to live in prison. Married people also can get certain tax breaks, more easily adopt children, leave inheritances and share insurance. These are definitely benefits. Do self-described homosexuals have a right to these things? Of course they do - as long as they follow the process that is in place to get them - namely by marrying a person of the opposite sex. Do all people have some inherent right to like who they want? Yes! That is part of being human. Do all people have some inherent right to be given any legal title simply because they want it? Of course not. Hillary Clinton probably wanted to be president more than any person who has ever lived, but simply wanting something wasn't enough. Legal recognition comes after you play the game, and she lost. So did the No to Prop 8 people in California. Societal recognition comes from society and if society votes against you, there's no recourse but to forget society (lots of people claim to be married even though the state doesn't recognize them as such) or else find a different society - Massachusetts is open for business.
The reason that many in California claim that gay marriage is different is because it is a question of equality and the state has already created a societal norm that all people will be treated equally. While defining equality is a dangerous proposition, I will attempt to briefly do just that.
America was founded under the proposition that all men were created equal. That's fine, as long as we understand that our founding fathers didn't mean that everybody had some innate right to be exactly the same at birth but instead recognize that people are all born with the same ability to make choices and suffer the consequences of those choice, whether they be good or bad. People, on top of having different situations where they are born, have different paths they can take based on the choices they make and based on what falls in their path. Lou Gehrig was blessed with a great physical ability to play baseball and he received recognition for that. He also was given a disease that destroyed his physical prowess. Obviously many people would have loved to have his physical prowess while most would want to avoid the disease that killed him. The important thing about Lou, though, was that nobody forced him to become a great baseball player any more than anybody forced him to not become a milk man. What he did with his life, including how to treat his disease, were up to him.
Equality, then, is that each person has the ability to choose for themselves based on the situation they are born into. I'll never have the physical prowess of LeBron James, but I can still decide to do with my life what I want to, just as he can. Nobody says he had to play basketball. Nobody said I had to graduate from college. We both did, though, because we were able to choose what we wanted to do with our lives - we were equal.
The true Civil Rights movement focused on people who were not given choices because of how they were born. If you were born black, you could not do certain things, no matter how hard you tried. Originally the idea was that black people were inferior to whites and were unable to do certain things (just as I'm unable to play in the NBA). Our societal mindset, though, was changed when we saw that race is not indicative of ability. Being black doesn't mean you are unable to succeed in a PhD program. Being autistic, though, might mean that you can’t - you can still try, but you probably will fail. Equality means you don't presume that because of a certain condition people can't even try. Nobody told me I couldn't try to be the best basketball player in the world, but I realized that for myself and made my decisions accordingly. Equality means that everybody can make choices for themselves and achieve whatever they want - whether that is to become the president of the United States or to become a convicted felon. Either way, you still have to follow the same rules.
Homosexuals claim that they are not being treated equally since the legal definition of marriage makes it so that they can't be legally married to the person they want to simply because of how they are made. That, though, simply isn't true. They can't be legally married to someone of the same gender because they live in a society that decided that legal "marriage" was between a man and a woman. Al Gore couldn't be president because he lived in a society that decided that the president was chosen by the Electoral College. If you don't like the rules, change them. That is exactly what Proposition 8 did. Inequality is saying that because you are female you can never become a felon. Inequality is saying that because you were born on a farm in Iowa you can never go to college. Inequality is saying that because you are an orthodox Jew you can't run for president. It is not inequality to say that because the person you want to marry is of the same gender as you that you can't be married. It is not inequality to say that because you voted for a Serbian national for president your vote won't count. It is not inequality to say that because you have had your driver's license revoked you can't get a job as a delivery man.
Remember, the government doesn't tell anyone who they have to like since that is a fundamental aspect of being human. On the other hand, society has its right to not recognize anyone's choice as to who they want to marry. It's not a fundamental right of a 5-year-old to marry the 6-year-old he really wants to. It's not a fundamental right of a group of six people to mutually marry each other, even if they all six claim to be in love. You can choose whomever you want to marry, you just can't always choose whether or not that fulfills the rules of marriage. Wanting your choice to become reality doesn't necessarily make it so. That’s why Hillary isn’t our president today.
2 comments:
Your take on the question of "civil rights" is fascinating, but I believe a casual reading of the 14th Amendment and subsequent Equal Protection Jurisprudence should inform your sadly “trite” (and ill-informed) understanding of a civil right. The Civil Rights Movement was fostered by the disparate treatment certain states afforded certain citizens--effectively violating the very principles of the Equal Protection clause ["no state shall ... deny to any person within its jurisdiction the equal protection of the laws"]. I think we both can agree that to treat people differently based merely on race is a violation of such equal protection. For example--Brown v. Board of Ed.. did not create any new rights—it acknowledged that “Separate but Equal” education was a violation of the Equal Protection Clause. In the event you are unfamiliar with the 14th Amendment—I have taken the liberty of including it below:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
My "trite" understanding of civil rights is not based on jurisprudence or even legisprudence. As much as I'd like to say that the Supreme Court is constantly right, it is a completely irrational basis on which to base any notion of civil rights. A simple foray into the history of the "right to make contracts" should reveal as much.
Brown s. Board of Education, despite what you claim, did in fact create a new civilly recognized right - the right for all people, regardless of color, to attend the same legally-created school. Before that, there was no such legal right and after the ruling that civil right existed. It was not inherent in the equal protection clause, it was interpreted from the equal protection clause.
Further, while the 1954 ruling of Brown did state that legal separation was violate of the Constitution, it did not elaborate on the necessary remedies. The 1955 ruling slightly clarified this, but it stated that local school boards should work towards the principles espoused in the 1954 ruling "with all deliberate speed". This second ruling shows us that there was no inherent right that the supreme court believed existed, but instead believed that the constitution espoused some Utopian goal that local school districts must strive for. The term "civil right" is often applied to this Utopian goal that the Supreme Court claimed the constitution guaranteed. Later rulings further clarified the court's position on the matter and imposed penalties on those that failed to reach the court's standards.
That, though, is apart form the actual issue of what a civil right really is. A civil right is recognition that a society gives to an individual or class that is distinct from the innate attributes of a person. You can't pass a law that says that every person must believe in God and then enforce that law (the opposite was tried by Stalin and we see what happened in Russia). A law can be passed, though, that states that certain benefits or detriments will only be imposed on people based on choices they make.
As I stated in my original post, you can't be legally recognized as a felon until the necessary steps have been taken to procure that designation. At the same time you can't become married until you take the necessary steps to become such. Marriage is a civil recognition with associated benefits. It is not a limitation on rights. Brown v. Board of Education claimed that separating races in public schools violated the prohibition against treating all mankind the same. Defining a legal benefit is completely different as long as people are not blocked form obtaining that benefit. A gay man could receive benefits by marrying a woman just as a straight man could since they both fulfilled the legal definition as established through the legislative process. Judges that say otherwise simply wish to circumvent the rules of legislation. That, though, is simply an admission that they are in the minority and their ideals can't be passed through existing legislative means. If you want something changed, go convince other people that you are right.
Not allowing gays to marry is no different than blocking John McCain from becoming the next President - the rules are in place and he didn't meet their requirements. If you don't like the Social Contract that our country was founded on (and the implied rules that said contract enforces), you have the option of revolution (an inherent right, not a civil right), a complete revamping of the constitution by following the rules (a civil right, not an inherent right) or simply ignoring all social customs and doing as you want to regardless of the consequences (another inherent right).
The legislative process could remove marriage as a legal status and there would be no legal recourse to force states to recognize marriage. There is a better argument that there should be legal recourse to force states to remove statutory rape statutes since there is no civil recognition of the right to intercourse with children since the supreme court has already stated that sexual actions fall under the right to privacy. Why don't you get on that bandwagon? The answer, of course, is because society doesn't feel that having intercourse with ANYONE you want without penalty is a societally recognized right. Engaging in the act is an inherent right, any legal consequences (whether beneficial, harmful or neutral) are a social or civil right.
The basis of your argument is that the equal protection clause "should" be interpreted to include recognition for any type of consensual marriage. That's a fine argument, but it must be made during the legislative process, not in the courts. Overstepping the legislative process by appealing to the courts is simply a refutation of the Locke's Social Contract that the constitution is based on. It's kind of odd to appeal to a phrase in the constitution so that you can ignore the document's very foundation.
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