Day by Day

Monday, March 08, 2004

Thank you Mr. Cross, a Response

I was going to respond to Dave's post in comments, but my response is long enough that I think it deserves a post of its own. So here we go. Before I start, though, if you haven't read his post, it's here.

With all due respect, I think that the argument of being against judicial activism only goes so far. At some point, it's not a valid argument. Yes, judges have gone too far this time. However, that doesn't justify screwing over a whole subset of the population.

When you get right down to it, this is, in fact, a civil rights issue as well as a judicial activism issue. People are trying to justify denying a right1/privilege/whatever to a group of people because of what essentially comes down to an arbitrary decision -- homosexuality is bad, therefore gay marriage is bad as well. There are two ways to see this: either it's a civil rights issue, or it's a religious issue.

Neither is acceptable.

Let's take it one piece at a time. First of all, is marriage a right? I answer twice: 1.) No, marriage is not a right, 2.) This question is irrelevant. What do I mean? First of all, marriage is not a right. It's a privilege, the same as driving. There is no inalienable right to marriage any more than there is an inalienable right to cheese, flowers, a 12-bedroom house, or anything else that is not strictly necessary to live. But this doesn't matter. Let me ask you this: is it ok to deny someone a driver's license because they're gay? I'll bet the response I get would be overwhelmingly "no, it's not". The same thing applies here -- if you are going to deny someone a privilege, you have to have a damned good reason. "We've done it this way for generations", quite frankly, isn't one. Let's face it, 50 million Elvis fans can be wrong.

So if we stipulate that marriage is a privilege, and that whether it's a privilege or a right is a totally worthless question, where does that leave us? It leaves us in the position of having to justify why we're denying marriage to a group of people. And that, almost by definition, is a civil rights issue.

The next piece is religion. If I hear "this isn't about religion; it's about the sanctity of marriage" one more time, I'll scream. Out of curiosity, I looked up "sanctity" on and got this:

sanc-ti-ty n.
pl. sanc-ti-ties
1. Holiness of life or disposition; saintliness.
2. The quality or condition of being considered sacred; inviolability.
3. Something considered sacred.

If you can explain how that doesn't tie into religion, you win the prize.

We are constitutionally promised freedom of religion. I agree that this doesn't mean freedom from religion, but this also means that we can't enshrine a particular set of religions beliefs into our laws. We are free to believe what we want, and we are free to celebrate our religion as we see fit... in the privacy of our own homes and/or communities. This doesn't give us the right to justify any large-scale2 laws on Judeo-Christian grounds any more than it gives us the right to justify the same laws on Islamic, Hindu, or Buddhist grounds. In other words, what we believe is supposed to be personal, and the Constitution allows us to have our personal beliefs without imposing them on other people. This means that unless you can explain how gay marriage hurts you personally, you have no right imposing a ban on it to someone else. Laws should be fundamentally negative -- you are assumed to be able to do X unless the law says that you specifically cannot do that -- and therefore the burden of proof lies on the person who is claiming the hurt or damage.

Finally, we get to judicial activism. The major problem I see with this argument is the fact that what's done is done. The can of worms has been opened, and to close it is to cause more problems than it's worth. The way to combat judicial activism isn't to undo what has been done; the way to combat judicial activism is to ensure that it doesn't happen again. Judicial activism is a good thing to fight against, but it does not justify the rest of it on this issue.

1 I'm getting there; hang on.
2 For the purposes of argument, let's define large-scale as state level or higher.

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