There is a plebiscite initiative in California that would amend the state constitution to define marriage as something that can only occur between a man and a woman, and would, thereby, prohibit same-sex couples from marrying. This initiative receives most of its support from religious interests. The principal argument in favor of it is that if such a law were not enacted, the current law, which permits same-sex marriages, would normalize homosexuality by codifying its acceptability. Supporters contend that this, among other things, would lead to teaching elementary school students that same-sex relationships are normal. Moreover, advocates state that since the current law results from the State Supreme Court’s having overturned a prior voter initiative, it is contrary to the will of the electorate. Opponents, in contrast, state that it is unfair discrimination and that everyone ought to be treated equally under the law; that specific statutory measures, or so-called civil union protections, will not suffice; and that, as a practical matter, such subjects really would not be taught in our elementary schools.
From the outset, as a general operating principle, I think that we ought to view with considerable suspicion any effort that attempts to limit the freedom of others, even when we disagree with them. Aside from defining the principal powers and institutions of government, one of the major purposes of both our state and federal constitutions is to protect our individual liberties, including the liberties of minorities, even when such safeguards are unpopular with the majority. Restricting the rights of individuals is clearly contrary to the evolutionary trajectory of our country’s constitutional development, and it is certainly antithetical to the spirit inherent in the Bill of Rights, amendments that limit the role of government and the tyranny of the majority, not the freedom of individuals. Our state and federal constitutions should protect rights and should not be used to enshrine into law their denial.
As to the specific case at hand, this is largely a question of religious perspectives centering on ancient taboos against homosexuality. Religious proscriptions or predilections, in my view, are not the proper subjects for consideration by the state. The state has a responsibility to protect the rights of individuals, most especially the so-called "negative rights" allowing us to act unhindered by others, insofar as we do not interfere with their just liberties, and even if said act is contrary to the tenants of a religious doctrine or the sentiments of a majority. It is not sufficient that one (or one’s deity) is merely offended by the free acts of others. If the proponents think that the state ought to proscribe all of those things that various religions hold to be odious, they will have to enact a very long list of legal prohibitions, indeed, including quite some that are contrary to the views held dear by many.
If the proponents of this initiative do not want to marry people of the same sex, they should not. If the proponents do not want to attend or sponsor the weddings of same sex couples, they should not. If the proponents want homosexual individuals or couples to be banned from their churches and their private clubs, then they should do so. If the proponents think that heterosexuals will all of a sudden convert to homosexuality, they are simply not well informed and do not understand human sexuality. If the proponents think that children are going to be made into homosexuals or corrupted simply because they learn that Jane married Sue, they are mistaken and naive. When the proponents are unable to teach their children, even at an early age, that society includes others with whom we sometimes strongly disagree, but that their individual liberties are nevertheless protected, they add sustenance to intolerance and bigotry.
Homosexuals seek to have lasting personal relationships protected by the same legal rights as heterosexuals. The social institution of marriage clearly has both legal and cultural ramifications. The state ought to be concerned with the former kind of effects, not the latter. The state should have nothing to say about religious views or traditions on marriage or other matters, insofar as the liberties of others are not curtailed by their activities. Marriage imparts fundamental legal rights that homosexuals would be denied, either practically or legally, if they were not allowed to marry. A contract between individuals as contemplated by civil unions would be an insufficient replacement and cumbersome. Moreover, if individuals wish to commit themselves to a relationship of marriage, and all that it entails legally, notwithstanding the opinion of others, they should be allowed to do so. The state has a duty to protect these rights, even when contrary to the views of religious people or prevailing cultural trends.
It might well be true that homosexuals would like their predilections and relationships to be considered normal or acceptable by society. That desire hardly makes them unique or even particularly unusual. Many diverse cultural segments, and, quite notably, religious groups, look for similar acceptance by society at large. Indeed, religious people, especially Christians, often go a step further, believing they should convert others to their beliefs. I personally find it offensive and intrusive when someone attempts to proselytize me. All the same, I have not asked for a law to prohibit this, though, because I can suffer the inconvenience of telling them to leave me alone. I know of no homosexual or homosexual group who has ever attempted to persuade me or anyone I know to become a homosexual. Homosexuals want to marry other homosexuals. Leave them alone and allow them to do so.
One of the arguments I have heard to counter opposition to this initiative is that before we know it, polygamists, for example, will be asking for equality under the law. It represents a slippery slope to all manner of deviance. Well, personally I’m fine with that, too, as long as we also sort out that they are not given any special advantages in terms of state-sponsored benefits and, of particular importance, that it is not used as a ruse for the sexual slavery of women, much in the same sense that spousal abuse amongst couples is not given countenance under the law, notwithstanding several Biblical injunctions to the contrary. The state oughtn't to be in the business of defining the kinds of relationships consenting, rational adults are permitted to have. The state’s particular concern is to ensure that individual rights are protected and that individuals are treated equally under the law. This, as I have said, is especially true with the all-important “negative right” of being left alone to exercise one’s individual preferences, as is the case in when two people choose to marry one another, even though others might disapprove.
The fact is that many (not all) religious people long to convince others of their point of view or of what they imagine to be their god’s dictates; indeed, they sometimes evince a strong desire to govern the behavior and lives of others, lest their own sensibilities be offended by beliefs or actions they dislike, even when they are not affected by them. They will not admit it, but what the latter truly crave is a uniformity of belief and conduct in society, the kind of result that could only occur in a theocracy. They do not prize religious freedom, per se, though that is the line they often use in defense of their views; instead, what they really prize is the freedom to practice their own religion and, what is more, they simultaneously want to chip away at and eventually eliminate any conflicting perspectives or the disagreeable behaviors of others. However, it is not the state’s proper function to support such evangelistic tendencies. On the contrary, it must strive to protect the rest of us from the unwanted and unjust intrusions by those who would seek to deny us our precious liberties.