[img]7|left|||no_popup[/img] In watching the oral arguments put forth to the California Supreme Court in regards to Prop. 8, I could understand how the ancient Greeks might have felt like flinging Sophists off the nearest cliffs. But we have to go through the exercise, especially with so much at stake. The irony is that those of us who reject Prop. 8 are, in a way, fighting for the right to “discriminate” – and that’s not necessarily a bad thing.

Kenneth Starr, that slick shark, certainly had a polished presentation. But to borrow from Aeon Flux, clean gloves hide dirty hands. The essence of his argument, that the people are sovereign, would have suited the defendants at the Nuremberg trials. After all, if the Constitution can be changed, ad hoc, through the will of the people – to the point that even rights like free speech can be revoked by popular vote – then there is nothing to stop the Powers That Be from rounding up the Jews again and sending them to the ovens – the Jews, or whatever minority happens to displease the majority the most. And there, right there, is the reason why Prop. 8 represents a revision of the Constitution, a structural change in how the tripartite government is set up; it denies the notion that there are rights so fundamental that they apply regardless of majority or minority opinion. Mob rule, in other words, without checks and balances.

Setting aside how pop-conservatives keep their heads from exploding given their selective support of government regulation – Govern private behaviour? Yay! Govern corporate behaviour? Hell no! – we can focus on the question itself: What is the role of government in marriage? At one point during the arguments, one of the justices asked Prop.8 challengers this very thing. The answer: It would be perfectly acceptable to take government out of the marriage business and instead sanction civil unions for all. A nomenclature shell game, perhaps…but not quite. If it can’t be civil unions for all, then marriage for all it is.

As an interesting exercise, it’s worth taking a detour to the complaints Prop. 8 supporters have in regards to the boycott of businesses that spend money towards denying gay rights. Some see this as an assault on society itself. Others view this as unjustly bucking society by playing the victim card. When I read complaints about gays playing the victim card, as I recently did within the very pages of thefrontpageonline.com, stemming from a refusal to do business with a particular restaurant, my reaction is that “we” don’t seem to have a stomach for confrontation or the consequences of disagreement. It’s just like unions, whom pop-conservatives dislike as a matter of principle. Workers are unhappy with their employers, they band together to exercise the power they have, namely, whether they work or not. Similarly, consumers can exert influence over the products and services they receive, and how they receive them, through their purchases. If we grant that businesses should hire and fire whomever they want and contribute their profits to whichever politician or political cause they want, then we also must accept the ability for consumers to exercise purchasing power how they see fit. It becomes a contest of wills, of compromise, of choosing one’s priorities.

No Stomach for Meaningful Freedom

It’s actually not so much a question of not having a stomach for confrontation, but of not having a stomach for meaningful freedom. We talk of personal responsibility. However, instead of accepting that freedom means not only making choices and taking responsibility for the consequences but also that other people will make choices we don’t approve of, we often go crying to the government to impose its will.

Which brings me back to Kenneth Starr and his legal arguments. On the one hand, hurrah for the “will of the people,” in a narrow sense. I’m quite willing to accept the notion of “public good” even though I think society is not any kind of entity but simply a numerical collection of individuals with intersecting interests. On the other, even the Founding Fathers were suspicious of democracy, choosing to create the U.S. as a constitutional republic instead. While in the past I have argued for electoral reform to better represent the will of the people, it’s important to qualify that with the notion that this only works under the principle that what affects the individual should be decided by the individual and what affects the group should be decided by the group. When the two get mixed up – individuals ruling groups or groups ruling individuals — we get tyranny.

So when I wrote that Prop. 8 opponents are fighting for the right to discriminate, I meant that this whole issue is a fight for freedom of choice, good and bad – that is, individual conscience, responsibility and action. It is to recognize that “the will of the people” is a form of authority that is as much deserving of skepticism as the authority of government, religion, or corporations.

Frédérik invites you to discuss this week's column and more at his blog (frederik-sisa.blogspot.com).