Oh dear. Bush apologist, McCain supporter, and former senator Rick Santorum has offered his addlepated opinion on the recent gay marriage ruling in California (Fedora Tip: 2 Political Junkies. He says:
“…The state Supreme Court there ruled, 4-3, that same-sex couples can marry. In doing so, four judges rejected a statute that passed in a referendum with 61 percent of the vote that defined marriage as a union of one man and one woman. It’s merely the latest in a string of court decisions that have overturned the overwhelming will of the people.”
As another blogger (a valedictorian law student no less) pointed out, sometimes the will of the people is in conflict with constitutional law. He says, “California’s Supreme Court did not override the will of the people; it simply looked at two different expressions of the people’s will and decided that the constitutional expression trumped the statutory expression, which is entirely proper.” I agree. If it is truly the will of the people of California to limit marriage to monogamous heterosexual couples, they’ll have to amend their state constitution.
That’s where things get a little ugly, though. First, the battle for the referendum will be be expensive and divisive. Second, only a simple majority is needed to pass the amendment. That, IMHO, leaves California vulnerable to tyrannical majorities. Yes, the 61% who voted for the now-defunct statute represent a clear majority. However, 39% is a rather large minority. Regardless of where people stand with regard to various controversial issues, I think most would agree that constitutional amendments should be difficult to bring about, so as to avoid these important guiding documents from being changed frequently and drastically with the shifting political winds. I would not call 51% majority, either in favor of or against a marriage amendment, representative of the will of the people any more than I’d call Bush’s 51% majority in 2004 a mandate.
But I digress. Santorum continues:
“What about the constitutional right to equal protection under the law? Marriage is not an inalienable right; it is a privilege, a license granted by government conferring certain governmental benefits.”
Actually, marriage is an expression of the right of free association. Also, the State shouldn’t have the power to confer any privileges or benefits. The government works for the people, not the other way around.
In an earlier interview, Santorum argued that there’s no constitutional right to privacy, which is ludicrous. There needn’t be an explicit “right to privacy” in the Constitution for it to be constitutionally protected. Anyone capable of reading the 9th and 10th Amendments should know that.
“There is a constitutional right that is under threat: the free exercise of religion.”
Since the State is mixed-up in a Church matter, that may be true, but I’ll get to that momentarily.
“Let me go out on another limb here and make another crazy prediction. Within 10 years, clergy will be sued or indicted for preaching on certain Bible passages dealing with homosexuality and churches, and church-related organizations will lose government contracts and even their tax-exempt status.”
Santorum may well be right here. After all, it’s started to happen in Canada. I’d agree with him that hate crime laws are essentially thought crime laws and should be avoided like the plague. However, this point is a red herring. The court decision only said that the statue barring gay marriage was unconstitutional. It didn’t say that gay marriage should be legal, nor did it say that barring gay marriage amounted to an act of hate to be punished.
“In Massachusetts, the first same-sex-marriage state, Catholic Charities, one of the state’s largest adoption agencies, was forced out of business because it refused to arrange adoptions for same-sex couples. In New Jersey, a Methodist group lost part of its state real estate tax exemption because it refused to permit civil-union ceremonies on church-owned property.”
If the State left charitable activities like adoption to private entities, Catholic Charities wouldn’t have been forced to comply with the State’s prevailing politically correct ideals. In addition, though I’d like to see taxes lowered across the board, I don’t think nonprofit entities should be exempt from taxes. The State holds that privilege over the Church like a damoclesian sword. Practicing theists should desire as little government intervention as possible, even if it would benefit them. After all, the State giveth and the State taketh away.
I believe the best solution to the gay marriage conundrum is for the State get out of the marriage business altogether. There should laws pertaining to contractual unions for the sake of insurance, inheritance, etc., but marriage should be a private affair mediated by religious institutions, if at all. That way, the Church can marry or not marry whomever it pleases and the State can limit itself to setting and protecting civil contract laws. Opposing viewpoints in favor of state involvement in marriage can be found at Taki’s mag and an old post on this blog, written by an anonymous author.