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Written by Marakay Rogers
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Thursday, 12 March 2009 00:00 |
Marakay Rogers, an attorney in Pennsylvania and a member of the Outright Libertarians Executive Committee, responds to Reason's Steve Chapman regarding his March 9 article supporting California's Proposition 8 as a valid amendment to the California Constitution. This is the second time in six months that Reason has published an article hostile to advocates for marriage equality. So much for "Free Minds..."
The powers not delegated to the United States by the U.S. Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. --Tenth Amendment to the United States Constitution (1791).
Since the Constitution does not grant the United States government any domain over family law, marriage has always been a matter for the states. Most libertarians, whether small-l or capital-L, oppose the federal Defense of Marriage Act (DOMA), which makes a federal determination of who is or is not legally married. Clearly, DOMA is outside federal action and should never have been enacted; a perfect example of federal overreach.
And so to California's Proposition 8. Can same-sex couples marry in California? The immediate response should and must only be "well, why not?" It is a fundamental of libertarian thought that the government has no duty, and certainly no right, to circumscribe the rights of individuals.
However, that is not how the current law is applied, thanks to the recent vote on Prop. 8, and as Steve Chapman would have it, it is not how the law should be applied. According to Chapman, "Like it or not, the California Constitution notes a basic truth in a democratic society: 'All political power is inherent in the people.' Advocates of same-sex marriage might do better by treating those people not as opponents to be defeated but as allies to be won." But that suggests that rights are political, not a matter of the inherent worth and dignity of human beings. Chapman suggests that there is an alternative – that of the existing domestic partnership law in California, which gives equality under laws "insofar as the state of California can provide them."
Chapman suggests that the same-sex marriage battle is not about equal rights but about nomenclature, an argument often used to suggest that those fighting the marriage battle are fighting over pure semantics. When those semantics also affect citizens' rights under federal laws, Mr. Chapman, I propose that the battle is anything but useless. It has been noted elsewhere, in lists too long to reproduce, that there are over one thousand instances in federal law in which specifically created rights are provided to those classified as "married" which cannot be provided to anyone whose status is not legally "married." As "domestic partnership" is not interpreted as "married" by the courts – more of those pointless semantics – those rights must be denied to such couples.
If we believe in equal protection of the laws, as long as such created rights exist only for those termed "married", the definition of marriage requires expansion as a basic right for non-heterosexual couples.
The question, ultimately, is whether the inalienable rights of the individual should only be recognized through the will of the people. If the abolition of slavery had been left to referendum, how much longer would slavery have existed in the United States? Various public polls of only a few years ago still indicated that gays should not be allowed to teach children or serve in the military. And not long ago, in an article on the voting gender gap, I noted a sarcastic comment pertaining to women's voting – apparently among some males, women's suffrage is still a question. And so, Mr. Chapman, should the categorizing of individual rights indeed be left to the voting public?
Chapman says yes – rights must be left to the determination of the voters in California, who have the right to abolish rights since nothing in California's constitution prevents it. That is a tautology full of sound and fury, signifying nothing. If a right is inalienable, as California Attorney General Jerry Brown suggests, then there is no "right" to abolish a right that exists with or without laws creating it. That, last I checked, is what "inalienable" means.
Further, the idea of a "right to abolish rights" is an anathema to libertarian philosophy , since it suggests that if the people wish to do so, they may vote to turn themselves over to a totalitarian government that would be permitted to deprive them of any future ability to exercise their rights. The idea of allowing the will of the people to give up their collective will permanently is a logical extension of Chapman's premise.
Political power may be inherent in the people, but individual rights cannot be allowed to rest on a political whim.
Marakay J. Rogers, Esquire
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