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Funny what post-election behavior reveals about people. Republicans who lost the presidential race are quietly supporting a smooth transition of power to the incoming Obama administration; Prop 8 opponents are busy organizing angry marches and targeting Mormons for retribution, using misguided rights talk to justify this unfortunate response. A National Review Online piece, “Legislating Immorality,” is a good place to correct some of this misguided rights talk.
The animus being directed at Mormons is hardly a principled or even rational reaction. Here’s the editorial’s summary:
To date, 30 states have voted on initiatives addressing same-sex marriage, and in every state traditional marriage has come out on top. But somehow the fact that Mormons got involved during the latest statewide referendum constitutes a bridge too far? In truth, Mormons are a target of convenience in the opening salvo of what is sure to be a full-scale assault on much of America’s religious infrastructure, which gay activists perceive as a barrier to their aspirations. Among religious groups, Mormons are not the biggest obstacle to same-sex marriage — not by a long shot. But they are an easy target. Anti-Mormon bigotry is unfortunately common, and gay-rights activists are cynically exploiting that fact.
The refrain that “They took away our rights!” is equally misguided. It’s not like putting the label “right” on your interest group’s desired policy change makes it a right. Parents wanting to apply hands-on discipline to their children doesn’t create a “right to corporal punishment”; those who think they ought to be able to light up a joint without fear of arrest don’t thereby establish a “right to get high.” Even when there are reasonable arguments to support these alleged rights, whether such rights are recognized or not is, in the United States of America, a function of the political and governmental process. Prop 8 is simply part of that process.
Courts have a role in determining what proposed rights get recognized and validated, but not an exclusive power or even a primary power. Rights are established by constitutional text, by legistlative statute, by executive rule-making power, by initiative, and by traditioin, as well as by judicial pronouncement. When the judicial process does recognize or create rights by deciding a case, that decision may be reversed by a higher court; it may be rendered moot by subsequent legislative action; or it may even be superceded by subsequent constitutional amendment (both the 13th Amendment and Proposition 8 are examples of this last possibility).
So Prop 8 did not take away an existing right for same-sex couples to marry in California. Instead, it was the culminating act in a long-running political and governmental process to determine whether or not such a novel right should be recognized. California is certainly not alone in rejecting such a right. And Prop 8 may not be the last say on the question. But the most accurate summary of the events of the last eight years is not that the recent election took away anyone’s rights, but that California is simply unwilling to recognize a right to gay marriage (despite the view of four of the seven judges of the California Supreme Court).
I have to say I’m much happier with the present course of post-election events than an alternative scenario where gay marriage advocates were quietly planning a different election strategy to try in 2012, while angry Republicans were marching by the thousands against Democratic Party offices, threatening to boycott blue states, and targeting the jobs of selected individual contributors to the Obama campaign. Maybe Prop 8 opponents should observe the sober Republican response to election defeat and go back to the drawing board with an eye to the next election rather than taking to the streets?