Michael D. Peabody is a California attorney and the editor of ReligiousLiberty.TV, a website dedicated to celebrating freedom of conscience.
An epic battle played out on two levels at the California Supreme Court on March 5. On a surface level, attorneys fought over a technical issue of whether the Proposition 8 prohibition on gay marriage represented a revision or an amendment. On the deeper level, the question asked was whether there are any limits on the majority to impact the rights of the minority.
It was a powerful argument - that the people of the State of California have the “raw power” to change the state constitution in any way that they please.
Ken Starr, an esteemed advocate, may have won the battle but lost the war when he asserted that, “the right of the people is inalienable to change their constitution through the amendment process. The people are sovereign and they can do very unwise things, and things that tug at the equality principle.”
Chief Justice Ronald George stretched Starr’s argument to explore its dimensions. He leaned in and asked a hypothetical - if Proposition 8 said that homosexuals had no right to form a family relationship or raise children, could that still be done by amendment? Starr said it could. Then George took the argument to the constitutional wall – could the voters also remove the right to free speech? Starr said yes, the voters have this right.
Essentially, what Starr argued was that the people have an inalienable right to take away the inalienable rights of others. Free speech is perhaps the most fundamental of fundamental rights. The people, in Starr’s argument, would also have the power to remove the right to free exercise of religion.
Granted, protection against discrimination on the basis of sexual orientation is a California state law provision, but Starr’s argument opened the door for a much broader and more frightening application.
America is a nation that discovered existing rights that were given to us as part of our birthright as human beings. Our rights were not invented or produced to be given out by the state, either through the power of the many or the few. We have a Bill of Rights, not to describe our limitations, but to tell the state and any authority over us, which would presumably include the people, that they cannot trample on our individual rights.
Many people are arguing that the Constitution only applies to the Federal Government and not to the states. Some gleefully raise the argument that the First Amendment says, “Congress shall make no law . . . “ and that states can do whatever they want when it comes to religion.
It turns out that they are right - up until the Reconstruction that followed the Civil War. When the Bill of Rights was written, it harbored a major, nearly fatal, flaw. The Bill of Rights did not apply to the states because the founders knew that it would have outlawed the “peculiar institution” of slavery, and this would have been a deal breaker for the Southern States. So it did not apply.
This led to the pressure being built up to the point of the Civil War where “states rights” was the rallying cry. When the Federal government emerged victorious, seceding states were forced to ratify several provisions in order to be readmitted to the union. The Thirteenth Amendment prohibited slavery in all of the states, and the Fourteenth Amendment applied the Bill of Rights to the states.
Today, lawyers invoke “the due process clause of the Fourteenth Amendment” in order to assert federal jurisdiction in discrimination lawsuits against the states. Thus, if a state violates your right to, for instance, free speech, you can sue the state in federal court using the Fourteenth Amendment. Otherwise, the state would be your final judicial authority and in states where supreme court justices are voted into office, you might have a steep hill to climb.
Ken Starr was wrong when he said that people had the power to overcome inalienable rights, but this is just the latest salvo against the Fourteenth Amendment. In recent years, many legal scholars have questioned the legitimacy of the Fourteenth Amendment because they claim it was forced upon the South who ratified it under duress. However, it remains the last and best protection of all kinds of freedom in the United States. It is easy to get worked up into a frenzy over an issue such as same-sex marriage and tie it into the rights of the people and ultimately assert that the majority may claim ownership of the inalienable rights of all. But that runs contrary to the principles of the consent of the governed, freedom of speech and religion, and sets the clock back to the time when such fundamental values were debatable or were even lost. Starr’s argument, however compelling on the surface, illustrates a frightening willingness to scorch the earth of all forms of freedom in order to deny a freedom to an unpopular group.
In the history of the world, pluralistic societies that remained free such as the United States have been an anomaly in a sea of paranoid dictators and murderous tyrants. Today, we take these truths to be “self-evident” but they cannot be taken for granted. We recognize that all rights are intertwined and that is it poor policy to surrender rights too easily, particularly when we are implicating rights that we ourselves enjoy.
In many ways, the marriage cases are turning out to be the canary in the coal mine. How we respond to its cries will determine whether freedom will survive this century.
This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/1500