I haven’t bothered catching up on what same-sex marriage amendment supporters have said about the New Jersey Supreme Court ruling that legalized same-sex marriage in everything but name because I don’t care what they think. Those in Virginia who are worked up because of it, like Sen. Allen, were already going to vote for the amendment here. Why should I care, beyond pointing out their obvious stupidity? They’ll drive 5 miles per hour faster to the polls on November 7th because they can’t wait to
stick it to the gays protect marriage. Big deal. Instead, I’m focused on what intelligent people are saying.
I’ve noticed two dominant themes regarding the decision: declaring victory and cautious agreement. I agree with the first viewpoint, as it’s clear that state-sponsored bigotry will eventually be set aside. I think it should occur faster. Rights are rights, regardless of who exercises them. We shouldn’t need a silly period of adjustment so that the majority can catch up. If they don’t like it, they’re capable of remaining in their own marriage anyway. But it is what it is.
The second viewpoint, while I’m happy that it exists, as opposed to opposition until the majority catches up, lacks what I think is fundamental about our Constitution and courts. Our rights are not provided by legislatures, at the will and whim of whatever majority exists at the moment. That’s a recipe for oppression, not liberty.
Instead, we must always remember that the Constitution guarantees rights we possess through the simple process of being alive. Courts exist to protect that fact, and enforce it on the other branches of government. It’s fine to believe that legislative action is a superior way to have rights protected, but legislatures are full of politicians. Rights, or the denial of rights, can and will be sold. That leaves the courts as a viable option that should not be dismissed as too challenging to the values and beliefs of Americans. If Americans can’t grasp that, our civics education has failed, not our political process.
I like what Jason Kuznicki wrote Wednesday at Positive Liberty:
Ultimately, I don’t care so much about process. I care about equality before the law, and I think that there are multiple legitimate ways to attain it. If equality happens one way, great. If it happens another way, that’s great too.
That’s the heart of it, I believe. The fight for marriage equality has been misrepresented by those more invested in maintaining some illusory sense of control over values. Marriage, as I understand it, is not a dual right, existing only for pairs. Every individual has the right to marriage, or whatever civil contract structure the government offers to promote efficiency in bundling certain incentives and benefits. The concept of individual rights requires this governmental offering be made to individuals who are interested in pairing, not to pairs who meet a notion of acceptability pre-conceived outside of the civil framework. Who a person chooses to marry is solely his or her business.
Our government’s role is merely to provide that benefit to everyone. Or no one, if it can’t play fair. Follow that common sense approach, and same-sex marriage opponents might finally understand the proper role of government. The rights of the individual trump the will of the majority.