NO on Prop 8: because it’s bad policy

This is the first in a five-part series on the “California Marriage Protection Act,” Proposition 8 on the November 2008 ballot.

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California’s Proposition 8 seeks to amend the state Constitution by adding a section which would read: Only marriage between a man and a woman is valid or recognized in California.

One of the fundamental problems with the so-called “California Marriage Protection Act” is that it is equally an attack on the right of same-sex couples to marry as it is on this nation. Let me be clear about what I am saying: in their attempt to deprive gay and lesbian couples of the right to marry, supporters of Prop. 8 are willing to kill what this nation stands for and, at its best, what it is.

We would be ignorant to believe the political project of the United States began in a state of purity with respect to individual and collective rights. Our “perfect union” was a system with far too many instances of legally-sanctioned imperfection—slavery, unequal voting rights, no recognition of the rights to free speech, assembly, religion, and so on. In the two centuries since the founding of this nation and the ratification of its Constitution, the best course of our history—broadly conceived—has been one of increasing liberty. Beginning with the adoption of the Bill of Rights (the first ten amendments to the Constitution) and continuing through to the present day, when we have truly been the global symbol of democracy and progress, it is when have moved in both small steps and great strides to assure the promise of freedom and liberty is one guaranteed to all.

This is, I hope, the heart of our nation. This is the dream of something better, of something “more perfect.” This is the foundation of our bloated self-conception as something great and yet, at the same time, of those instances of fact when this greatness thrives. If we do not continue to move forward in our laws and customs, if we do not strive toward greater freedom and liberty for all, we threaten the very future of our nation and disrespect the struggles of the past.

This pattern has been anything but natural, and certainly not without exception. As Martin Luther King wrote in his “Letter from a Birmingham Jail” (penned in 1963 while the civil rights leader was jailed for protesting segregation) “time itself is neutral; it can be used either destructively or constructively.” Indeed, there are as many examples of the former as there are of the latter in our shared past. (I think of the forced removal of Native Americans even while the Supreme Court upheld their rights to their land; the imposition of Jim Crow after the abolition of slavery and the end of Reconstruction; or the illegality of Chinese immigration while all other migrants retained the right of free entrance, just to name but three examples.) What has shaped the broader pattern is NOT our natural tendency toward expanding freedom and liberty but, rather, the morality of groups of people engaged in organized movement. As King wrote in the same essay, “freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.” This pattern to our history I discuss (however delicate and selective) is the legacy of the ethical decisions of generations past to take action against injustice and immoral excess. This is the soul of our nation.

It is fair and necessary to ask, what kind of movement is Prop. 8? Is it an instance of expanding or contracting freedom? Is it a move toward conscience or toward fear?

We must remember that, in the case of California, same-sex marriages are currently the law. Gay and lesbian couples enjoy this right at the current time and, if the proposed measure passes, they will not. How many instances are there in our past of an overt move to take away rights presently enjoyed? Jim Crow is perhaps the most memorable. After the period of Reconstruction had instilled in some the hope of a truly multiracial democracy in the South and North, the victors in the Civil War abdicated their management of democratic development as the Southern states found ways to legislate slavery by other means. Rights which Black Americans enjoyed were taken away, a clear example of legal regression. And how do we view this “movement” today?

Perhaps our thoughts turn toward Constitutional examples, when rights enjoyed were taken away via revisions of the legal blueprint of the polity. The most famous example of this is, arguably, the 18th Amendment to the U.S. Constitution, ratified in 1919. For those who do not remember, this effectively made liquor illegal in the U.S. Legendary for its failure, it was repealed in 1933 with the passage of the 21st Amendment. By that time, Constitutional temperance was regularly criticized as an attack on individual rights orchestrated by a bunch of religious zealots.

History shows that we can never fully move backward in the struggle for freedom and equality. Such efforts are inherently flawed, and affront to the struggle for human progress. They merely create the context for new struggle, movement nurtured by people of conscience, movement which must succeed if the promise of the nation is to remain in tact. But what is the cost in the meantime?

Simply put, Proposition 8 is bad policy because it represents a taking away of rights currently enjoyed by our society. Such a movement is an affront to the promise embedded in our nation and, clearly, a setting of the stage of a future movement which will, with time and effort, emerge victorious. Such a middle ground—a time of struggle to regain lost rights—is a time of pain, of oppression, and of great human cost, not to mention a waste of public resources. To support this measure is to stand with the follies of past generations (of racists and xenophobes and zealots), people who history has judged as nothing more than human impediments to freedom, tests of our will to be this nation of liberty.

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