Overturning Prop 8 would reaffirm basic American rights

If the California Supreme Court overturns the state’s ban on same-sex marriage in the next few days, it would give renewed strength to two fundamental and deeply cherished American ideals and operating principles.

The first is that though majorities rule in democracies, majorities cannot tyrannize minorities, deny them rights, criminalize their very existence on subjective grounds or religious grounds, or on any grounds whatsoever, nor turn them into second class citizens.

This fundamental principle applies to everyone and every group, save criminal gangs and conspiracies, because all of us are potential victims of the tyranny of the majority. All of us — women, people of all colors, all races, cultures and religions, the disabled, people who hold dissenting political views, and members of the gay/lesbian/bisexual/transgendered community.

Because the founders understood that everyone is a potential victim of some majority’s prejudice against their ideas or communities, the U.S. Constitution was designed to safeguard all of us through the principle of equal protection under the law.

The second fundamental principle is that when you are a citizen of the United States you are entitled to the full rights and privileges of citizenship. There is no hierarchy of citizenship. We are all equally citizens and all equal under the law. That is why laws that discriminate against minorities, of any kind, are unconstitutional, including any statute anywhere that supports mandatory segregation or diminished citizenship for anyone.

In this country, there isn’t one group which gets all privileges and other groups who are cheated of their equality and denied their basic rights. And though the founders made mistakes in the Constitution regarding the so-called superior rights of property owners, and the status of African Americans as property, American principles of equality and fairness have worked to correct those errors so that no caste system, no social hierarchy, no aristocracy exists in the Constitution.

The California Supreme Court’s decision to overturn Proposition 8, which banned same-sex marriage late last year, would almost certainly do so on the grounds of equal protection under law, which would make any kind of discrimination based on sexual orientation illegal. Such a decision would also indirectly reject the overwhelmingly religious nature of Proposition 8’s support. As the First Amendment makes clear, religion cannot be used to deny full citizenship to minorities either.

Proposition 8 supporters would be aghast at such a judicial decision, decrying that the voice of the people, expressed in the referendum, would have been denied. But the courts are the voice of the people too.

Elections can’t be used to turn minorities in American culture into pariahs, into second rate citizens, into legal serfs and untouchables. That kind of thinking, associated with many contemporary conservatives, is based on old views of hereditary hierarchy which hold that some people are inherently better and more deserving than others.

It’s the same kind of thinking that blocked the Equal Rights Amendment for women in the early 1980s, reflecting misogyny’s mirroring of class and race prejudice that is the hallmark of upper class aristocratic privilege.

Many of the Constitution’s principles and moral underpinnings have to do with protecting social interactions, religious practices, and expressive speech from discrimination. What people do in private, in their own lives, in ways that do not harm others, is entirely their business and is not subjected to the authority of government, at least in theory.

Sociologist C. Wright Mills perfectly and with great clarity stated this ideal when he wrote in his autobiography “Liberty” that “the only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”

This sentiment is held, I think, by the vast majority of Americans. I’ll abide by the laws, I’ll contribute to my society as I can, but don’t meddle in my private affairs, eavesdrop on my conversations, don’t pry into my life, don’t spy on me, don’t mess with what goes on in my bedroom, don’t compromise my absolute control over my own body and my own life. And if you do, you’d better have all the Constitutionally sanctioned legal equipment you are required to have to do so. And even then, I’ll fight you with everything I’ve got.

This is an almost instinctive American point of view. And it applies to everyone, not just to males, not just to white people, not just to the wealthy, not just to heterosexuals.

While some people don’t like the idea of same-sex marriage, other people do, and others don’t care either way. And as long as same-sex marriage does nothing to infringe on someone else’s rights there’s no grounds to oppose it in the United States.

To oppose it on religious grounds is to go against the spirit of the First Amendment’s establishment clause in which the state has no business sanctioning, through law, any group’s religious views.