October 22, 2008

California Proposition 8: What Rights?

There are some issues that I always hesitate to talk or write about on account of the fact that it seems to me that most of the discussion on the issue - regardless of which side it's coming from - is, well, stupid. Evolution (in the context of either (1) theology, or (2) public education) is one of those issues. Another is gay marriage. Nevertheless, since, now that I'm a Californian, I have to decide how to vote in two weeks, I suppose I had better wade in.

When the California Supreme Court ruled in favor of allowing gay marriage, it did so on essentially two grounds: recognition of a 'right to marry,' allegedly implicit in the state constitution (the constitution having previously been read in this way during disputes over interracial marriage many years ago), and 'equal protection' issues. The former, we learn on p. 16 of the decision, is "protected by the due process and privacy provisions of the California Constitution," along with the equal protection clause. The latter has to do with article 1's guarantee that "A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws" and the US Constitution's 14th amendment which says that no state may "deny to any person within its jurisdiction the equal protection of the laws".

As a libertarian, I have a very specific view of 'rights' and of 'property' and it irks me when people assert that this or that is an issue of 'rights' or of 'property' without being clear on why we should think this (or on what the alleged 'right' or 'property' is), like San Francisco Mayor Gavin Newsom's claim that wireless internet is "a civil rights issue", or the claims of 'intellectual property' proponents. Now, I realize that the majority of people don't believe that there are such things as rights or, especially, property in the exact sense in which libertarians define these terms, but we should be able to weaken our concepts in such a way as to make them more broadly applicable. We will say that you have a 'right' to do something just in case it is always (or, to allow for non-libertarians, nearly always) morally abhorrent for anyone, especially the government, to interfere by force with your attempt to do it. I will use the term 'absolute right' when I want to exclude the 'nearly' that I have allowed for inclusivity. I may occasionally use the term 'positive right'. You have a positive right to a thing just in case it is morally abhorrent that you should fail to have it done for you (presumably someone other than you is the guilty one). I won't talk about this much because it's nonsense. Something is your property just in case you and you alone have the authority to decide what is done with it. Libertarians, of course, believe that you have an absolute right to your property, but the definition of property just given doesn't require that. (Someone might suppose that there are circumstances in which it is ok to take property away - imminent domain, for instance.)

Now, the question is, what rights are at stake here? The court says there is a 'right to marriage'. Clearly this isn't a positive right. If it was, then I suppose the government would have an obligation to make sure you can find a spouse. So this must mean that the government cannot interfere with two adults who want to get married to each other. That sounds good, right?

But the question is, what does 'married' mean? And this is all that is at stake in prop. 8, as I will further explain below. Before we get there, however, it seems that there are some important rights you have, which derive from self-ownership and/or freedom of contract and/or property rights, which are traditionally associated with marriage:

  • The right to designate anyone you like as the beneficiary of your will

  • The right to cohabit with anyone you like

  • The right to designate anyone you like as 'next of kin' for purposes of 'end of life' issues

  • The right to grant anyone you like hospital visiting privileges in case you should be incapacitated

  • The right to share your property with anyone you like

  • The right to specify the terms and conditions for the exercise of the rights mentioned above, including the circumstances of dissolution of joint property, invalidation of next of kin designation, etc.

These are just examples. Now, in some of these cases, there is a legitimate need for state involvement. For instance, the state is not going to let anyone other than your designated 'next of kin' make the decision to take you off life support if you are on it. This means that the state has to know whom you have designated and have a reasonable policy in case you haven't made an explicit designation.

Now, the exercise of all these rights is rather complex. In my view, the state has made it far too complex. However, in order to simplify the situation, the state has instituted certain 'defaults' which apply to couples who are joined by civil marriage. Lauren and I were recently married in the state of Pennsylvania. We don't happen to agree with the conditions for dissolution which nearly every state specifies (specifically: we don't believe in 'no fault' divorce), but we didn't bother to write an agreement adjusting the terms, because it's a hassle. We're agreed among ourselves, and didn't think we needed the state to enforce that.

My point in bringing that up is not to highlight how socially conservative I am, nor is it to argue for the elimination of 'no fault' divorce from the law. Rather, my purpose is to point out that already 'civil marriage' is, to a large degree, a one-size-fits-all institution and the current definition is already out of line with my religious beliefs about the definition of marriage, and with my personal preferences, but it's such a hassle to fight it, and religious marriage is so much more important to me, that I didn't bother.

The claim I am building to is that I actually believe all people, including gays, ought to have far more freedom than they do now in exercising the rights listed above.

However, this is not what proposition 8 is about, nor is it what the court decision was about. The court decision doesn't grant any rights to homosexual couples that they didn't have before, other than the right to have their union called marriage by the state. (Hmm... I just noticed - this is actually a positive right: proponents of the decision are claiming that their rights are violated if the state doesn't apply the term 'marriage' to their agreement!) What does this amount to? The court decision again and again talks about the respect and dignity accorded to the institution of marriage. But all the same respect and dignity is already accorded officially by the state to domestic partnerships. They have all the same rights and privileges and obligations as far as the state is concerned. So what are the justices talking about? It seems to me (and yes, I did read the whole majority opinion) that the justices want, by this change in nomenclature, to erase the cultural or popular distinction made between committed heterosexual and homosexual couples. The are trying to engage in some cultural engineering. (Isn't that what the right is always accused of?) Where does the court get off trying to do this? This type of behavior implicates freedom of religion (to which the court gives a brief nod on p. 117) and of conscience.

Why don't you have a right to gay marriage? In my opinion (and this also seems to be the opinion of Justice Baxter in his dissent), it is for the same reason you don't have a right to a round square.

When I first heard of proposition 8, I was torn about it, because I would not want to interfere with any of the legitimate rights listed above, but, at the same time, I wouldn't want the state's definition of marriage to get any worse than it already is. Now that I have studied the issues, I see that both sides agree that we are fighting about a name. It is already the case that everyone has the same substantive (negative) rights. I would strongly prefer that the state not define marriage at all, but given the way this measure is written, it seems clear to me that I must support it.

I also want to say that the proponents of the measure are not so out-to-lunch as many suppose in their claims that this will affect public school children. It already has (HT: GetReligion). Furthermore, it's difficult to see how the definition of marriage could be irrelevant to how sex ed. is taught. In fact, if it was - that is, if the school system talked about sex without ever once mentioning marriage -, I'd be worried. I realize that, as the superintendent of public instruction has noted, the statewide education requirements don't require talk about marriage, but treating the two topics as totally unrelated strikes me as extremely disturbing. I don't mean to say that it should be required, but only that if we are having a healthy discussion about sexual behaviors (and 'behaviors' are certainly included in 'comprehensive' curricula, like California's), it ought to come up one way or another. The ability to opt out doesn't seem to me to be a sufficient remedy (which, I suppose is one of the reasons I oppose socialized education). The state still presents a particular view as the normative one, and other views are treated as divergent. By striking marriage from the law entirely and allowing people to exercise the rights I mentioned above at will (in some sufficiently simple fashion), the state could take a truly neutral position. Neutrality is not what is happening here. What is happening is that the state takes a particular view of the definition of marriage, and no matter what that view is, it will amount to the state claiming that some particular moral or religious view is false.

For more context on my thought on the matter, see my previous discussion of Christianity and homosexuality.

Posted by Kenny at October 22, 2008 10:53 PM
TrackBack URL for this entry: http://blog.kennypearce.net/admin/mt-tb.cgi/435


Wonderfully said. I do not believe it is any longer possible to use the word marriage to refer to a male female union, so I would propose that we begin to use another specific term to refer to the traditional union of a man and a woman. If the law changes so that marriage is the term used to cover both homo and hetero-sexual unions, let it be. We can distance ourselves by coining a new term and at the same time liberate that new union from the grips of the government.

Posted by: Jay at November 17, 2008 5:48 PM

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