Why Putting Civil Rights Up to a Vote Is a Bad Idea

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Mr. Foster teaches history at DePaul University. He is the author of Sex and the Eighteenth-Century Man: Massachusetts and the History of Sexuality in America (2006) and a writer for the History News Service.

The recent decision of California voters to take away the right of gays and lesbians to marry highlights the danger of exposing civil rights protection to popular vote.

Earlier this year, the Supreme Court of California ruled that under the California constitution gays and lesbians had the same right as heterosexuals to be married by the state. The decision in no way infringed upon the privilege of churches to sanctify marriages as they saw fit.

The issue is of course not limited to California. In this month's election, voters in Arizona and Florida decided to deny gays and lesbians the right to marry, with Florida also choosing to deny both heterosexual and homosexual couples the option of civil unions. In Arkansas, voters decided that gay and lesbian parents should not be allowed to adopt or act as foster parents by restricting those activities to married couples.

Marriage in this country (as it was even in Puritan New England) is a civil contract. Thus, superior courts in California, Massachusetts and Connecticut weighing this right against their states' constitutions found that its denial violates the civil rights of gays and lesbians. This is precisely why opponents of gay marriage place the issue on a referendum, in hope that voters will change their constitutions to be more restrictive.

Civil marriage and church marriage are two concepts that should be kept separate. This separation is at least as old as the U.S. Constitution. In states that allow gay marriages, as would have been the case in California if Proposition 8 had failed, churches maintain their right to permit or deny their religious ceremonies of marriage.

The Founding Fathers purposefully avoided writing into the Constitution any sanctioning of religion by the state. They had learned lessons from their own history both in Europe and the American colonies.

Puritan New England founded its colonial enterprise with some official divisions between state and church -- not allowing ministers to hold office, for example. But the Puritans also cited the Bible to support capital punishment and other laws. Thus, adultery, then defined as sex between a married woman with either a single or married man (and not a married man with a single woman), was punishable by death.

Today the West criticizes regimes that enforce religious strictures by governmental means, such as, for example, Iran's death penalty against homosexual sex.

When supporters of defining marriage as between one man and one woman argue that allowing gay and lesbians to marry offends their religious faith, they are invoking a long and troubled entanglement of faith and sexuality in this country. Because the Bible is frequently invoked in such arguments, presumably the faith invoked is Christianity. But given this logic the problem quickly arises as to whose faith the law should follow, given that we are an increasingly diverse nation.

Few would argue that the law should derive from Catholicism, for example, with its prohibition on birth control. Still, does legal birth control not offend a Catholic's faith? Fewer still would argue that the law should be designed to avoid offending those sects of Mormonism that still claim that prohibitions against polygamy violate their faith. Even fewer would argue that sex altogether be illegal, lest we violate those who identify as Shakers today and embrace celibacy.

California's legal battles surrounding gay marriage have yet to be settled. Legal challenges have been initiated in response to the Californians' recent vote. Eventually, the U.S. Supreme Court MAY be called upon to rule on the matter. Still in legal limbo is the status of the 18,000 gays and lesbians who married when California briefly provided that right to them.

In all such cases, spurious arguments about gay and lesbian marriages invoke selective readings of the Bible, faulty interpretations of the Founding Fathers, and lessons not learned from American history or from current religiously intolerant regimes in the world today.

The outcome of the recent referendum in California shows us that unless Americans can recognize that their own individual religious beliefs should not be the basis for the legal and constitutional structure of the country, civil rights should no longer be put to public vote.

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    Paul Zieger - 11/25/2008

    On that I wholeheartedly agree!!!

    James Lee Winningham - 11/25/2008

    I completely agree with you on the complexity of this issue and the need of both sides to consider logical and reasoned arguments. However, until we as a people start paying attention our debates will always be plagued by soundbites, which prevents any solution.

    Paul Zieger - 11/23/2008

    This has been a good discussion. The problem with the way this issue (and many other "hot button" issues) is handled presently is that it is argued through media soundbites and raw emotions. These are thoughtful and complex issues.

    If the opposition to same sex marriage relies on religious doctrine to make its point (and I'm not saying that they are), then they are doomed to failure and rightfully so. However, this issue is not limited to a religious doctrine. (You can't by rule of law make all people accept Eucharistic Transubstantiaton or Papal Infallibility.) There are very legitimate arguments against same sex marriage. They are not automatically falsified or made illegitimate if they are complementary to the beliefs of a certain religious faith.

    I think that both sides have to be careful not to paint with too broad a brush. Faith, informed by reason, has a legitimate place making reasoned arguments in the public square. I think those who support gay marriage, need to respect this and make their most cogent argument and avoid the Christian bashing.

    I think I've said my peace on this issue.

    R.R. Hamilton - 11/23/2008

    There is no equal protection argument for same-sex marriage. In order for there to be one, there would have to be laws that provided that SOME people (say, whites, women, or straights) could enter into same-sex marriages but OTHER people (non-whites, men, gays) could not. Laws that ban same-sex marriage ban it for ALL people, not just gays. Obviously this is not the only "arbitrary restriction" we have on marriage. Like the others (banning, for example, brothers from marrying sisters), laws against same-sex marriage are applied without discrimination.

    People who think anti-same-sex marriage laws are "discriminatory" mistake the government's interest in marriage. Government does not give certain blessings to marriages in order to "honor the love" of the union. If that becomes the rationale for supporting same-sex marriage, then opposition to honoring any other romantic attachments (like the siblings who want to marry) becomes nothing more than a REAL act of rank discrimination. Then there WOULD be an "equal protection" argument to make.

    James Lee Winningham - 11/21/2008

    Yes, but the people spending the money in this debate are fundamentally against the mere idea that homosexual couples should have that legal committment. I am not saying you are one of those people since you are making some, though I may not agree wholeheartedly, arguable points. First off, some would say marriage does not allow a civilization to grow for civilization can grow regardless if there is an institution called marriage. Though I have the same reservations about "redefining a term," I can also remember a time when slavery and racism was justified on the basis of "biological realities." We proved false those biological realities that said black and white were biologically different. Now I am not saying that you can prove wrong the biological realities you listed above, for we all know that homosexual couples cannot procreate, but my point is that "biological realities" have been used numerous times in our histories to deny a group or segment of our population civil rights (or any right for that matter), so I do have a problem historically with your argument. Many people out to defeat this movement are doing so, i believe, because they don't like the lifestyle and believe it is a sin and that is their right. However, they are not interested in just stopping the "redefining of marriage," most of them are against any legal recognition of homosexual unions.

    Paul Zieger - 11/20/2008

    "Religion" didn't fabricate the traditional marital relationship out of thin air. Nor did marriage emanate from "religion" to harm people in non-traditional relationships. The mainstream religions merely reinforce what has obviously been written into creation (whether by Creator or rising from the primordial ooze). Marriage as man and woman creates the long term bond to allow a family...a community... a civilization to grow. Man and woman together have an obvious procreative power that is absent in same sex couples. These are biological realities that cannot be denied.
    The previous instances of "redefining" marriage were to eliminate racism, not to deny biological realities.
    If same sex partners want to write up legal contracts defining their relationship, they should feel free to go right ahead. But to call it a marriage - to deny the biological realities - is an objective fallacy, plain and simple.
    Lastly, I would just say that no one is trying to "spite" anyone here. We all live within the limitations that our natural makeup presents us. Changing a definition to make some people feel better about themselves is still perpetrating a falsehood.

    James Lee Winningham - 11/20/2008

    If we are going to determine rights based on a biblical or any religious faith then we have to decide what faith we will adhere to. Contraception offends the Catholic faith, so lets make contraception in all forms illegal. Divorce offends the Christian faith, make it illegal along with premarital sex, which is also a sin. To me, this article is right to suggest that marriage has always been separated between a religious sacrament and a civil contract. Legally marriage has been redefined at least twice in our history to recognize black on black marriage and black and white marriage, two types of marriages not recognized legally at one point in our history. Two atheist (man and woman) marrying is not a religious ceremony, but it is a civil ceremony illustrating commitment. Atheism by definition offends the Christian faith, so should two atheist not be able to marry? When over 50 percent of heterosexual marriages fail in this country I do not think heterosexuals should be advertising themselves as upholders of the sanctity of marriage. To me marriage lost its sanctity when reality TV emerged treating marriage as a contest. How does me denying a person the right to marry (because I am not gay it would be strictly out of spite) make my marriage any stronger. I do not agree with the Atheist belief (much like I do not agree with the homosexual lifestyle) but I do not deny the Atheist the right to marry.

    Paul Zieger - 11/17/2008

    It seems to me that when a minority petitions for a right, they are stating that said right EXISTS and wish it to be recognized. When a court gives its ascent it is acknowleging the existence of this right, not just spontaneously but for time immemorial.
    I think we differ on the source of rights. It appears you see them as "granted" by a court, whereas I believed they are "created", bestowed upon a nation who's government is to protect them. A court that grants rights can remove them. A court that recognizes rights as created and bestowed cannot ethically mold those rights to meet their liking.

    Paul Zieger - 11/17/2008

    Harems are utilitarian,which is defined as exhibiting or stressing utility over other values. Free flowing uninhibited sex stresses the supremacy of a man's base sexual desires over values such as love, and self-sacrifice. The only utilitarian marriage, my friend, is a very brief one.
    "Human rights are something we have the ability to recognize as individuals?" Where does one derive this ability? Isn't one role of government to safeguard human rights, which are not pronouncements of any one judicial system but pre-ordained and eternal (I would say the exception to this is the right to vote which only exists in democratic structures as opposed to monarchies). It is only when rights become government inventions that they can be granted and removed.
    A "marriage" between two men does effect me because it is not truth. If 90% of the country insists that the color of grass is green because it IS and a very vocal hip smart 10% minority say its really pink, can it be both so that everyone is happy and no one is hurt. Are the people that believe grass is green strengthened by this or has truth been trumped by guile.
    And as for the family structure, the single parent variety is a societal disaster on so many levels, I don't know where to begin (and won't!) While social pressures effect family structure, don't we as a society function at a level above simple acquiescence.

    Randll Reese Besch - 11/17/2008

    The "parts fitted" that way as well. Don't we function at a level above simple utilitarianism? Human rights are something we have the ability to recognize as individuals. Two men marrying or two women will not change one iota the 'traditional marriage' in any way. If anything it will be strengthened.

    Check out the 9th Amendment of the Bill of Rights. There is a reason why it is still ignored from its inception. It simply states it covers all the other myriad rights not enumerated. Very powerful.

    A minority is a group that does not have the numbers and in a voting scheme of democratic socialism, will lose out more often than not. Must I really explain it or are you being supercilious in this context?

    As for the building block of society well no. The so-called nuclear family was a recent invention. Before it was an extended family structure. Now the common structure is a single parent. That will change in the future as social pressures change.

    Craig Michael Loftin - 11/17/2008

    Of course merely petitioning for a right does not grant the right. But a minority group should be able to petition for a right and have it reviewed, vetted, and ultimately judged upon by the judiciary. Frivolous petitions will not get far. In this case, the California State Supreme Court heard the arguments for and against and ruled in favor of gay marriage. While the political right decries "activist judges" in cases such as this, it should be remembered that six of the seven Ca. State Supreme Court justices were appointed by Republican Govs. This is hardly some crazy left wing court gone wild, but I think reflects a sober (and in my opinion wise) assessment of minority rights. And I think their judgement is well aligned with the gist of the Federalist Papers which discussed protection of minority rights from the "tyranny of the majority."

    Paul Zieger - 11/14/2008

    By this argument , any "minority" (whatever that means) can petition for a right and the majority is powerless to have any say. What say does the majority have in shaping our societal structures?
    Also I would proffer that marriage as man and wife is not strictly a religious construct - but an affirmation of obvious biological realities (the parts fit). It is the reproductive and socialization building block of societies for time immemorial. That's not something to be brushed aside lightly.

    Randll Reese Besch - 11/14/2008

    Then decide if under the Constitution/bill of Rights there are no violations by those who wish to limit it to a religiously designated man and woman only. Personally to me the state is there to protect the rights of all not just some. Read the much ignored 9th Amendment for those rights not enumerated.

    A civil right? Yes! Unless you are going to say that it is only a religious right. Or that it is a right of a theocracy where Church and and state are one. Then we can toss the Constitution/Bill of Rights for they would violate many tenants of the Christian Bible. Tangled isn't it?

    The very idea of a majority voting on minority rights is criminal. As the vernacular of today is "whack!" The rights should exist. Otherwise anyone's rights are subject to their removing them . The idea that taking rights is equivalent to recognizing them is also a terrible idea against freedom of the individual.

    How about this rule. If you don't like it don't do it but leave others who wish to do it alone.

    John R. Maass - 11/14/2008

    I don't know the answer to that one, but doubt there was any right at all. I also point out that had the measure failed, I seriously doubt we'd be reading this same article.

    Paul Zieger - 11/13/2008

    I would just pose a question to whoever would like to respond. Has the right to gay marriage always existed but it was somehow obscured from our view until petitioned for by homosexuals? Does the petition for a potential right create the right?