Liberty and Proposition 8
For many gay people in America who fell asleep on November 4 thinking that their nation had finally taken a great leap forward, it must have seemed that their country had simultaneously taken several steps backward when they awoke to news of Proposition 8. Other provisions passed around the country, such as those in Florida and Arizona, were proactive—that is, they anticipated and moved to eliminate a theoretical future right of homosexual marriage.
But Proposition 8 was different. Its passage was more than a rebuke of homosexuality by the state many people consider to be the most liberal in the union; it was the first time that the right of gays to marry, previously found in California to be constitutionally protected, was explicitly taken away. For this reason among others, it has garnered a multitude of responses from those on both sides of the issue. Keith Olbermann, a man whom I normally find almost as repulsive as Bill O’Reilly, deserves particular credit for a highly emotional commentary he made which has been circulating on YouTube as of late.
These commentators are doing the right thing, and I hope that they will help to swing the tide of public opinion toward gay rights. But in the mean time, I have an additional analysis of the situation: The passage of Proposition 8 was wrong not just on moral grounds, but also because Americans do not have the right to stop gays from getting married.
This is quite a statement, so please let me explain. America is a democracy founded on the notion of liberty. The fundamental notion of liberty is what is called the “no harm” principle, which essentially states that one has a right to do anything which does not bring harm to anyone else. At the point at which harm would be done to someone else, they have the right to put a stop to it—a practical example of this is self-defense. To determine whether the prevention of gay marriage is allowed, it must be looked at through this lens.
The critical question then becomes: Does gay marriage cause harm to those who would seek to prevent it? If so, then they are justified in doing so. Many of these people would likely say yes, claiming that gay marriage presents a verifiable threat to their society, and that governmental acceptance of gay marriage would mean acknowledging as legitimate a relationship which they consider sinful.
The first argument is difficult to make, because the notion of “society” as one unified mass is obviously false. Rather, “society” as a whole is a shifting, undulating composite of many different groups of people with many different opinions. Why do opponents of gay marriage get to be the spokesmen for all of society? Certainly gay marriage would cause the makeup of society to change, but it would be almost impossible to determine whether that change constituted “harm.” For everyone who would oppose the change, there is likely another who would approve. “Harm” is pretty hard to ascertain here.
The second argument is also false because governmental acceptance of gay marriage does not necessitate an imposition of opinion upon those who oppose gay marriage. To allow gay marriage is not the same thing as to approve of it. The anti-gays are under no obligation to change their minds and can go on believing whatever they want to for however long they want to. Thus, in this case as well, it seems impossible to establish the “harm” prerequisite for preventing gays from marrying.
Now, it’s important to stop here and note that there is a very big difference between holding opinions and acting upon them. Because opinions do not present a clear “harm,” the right to eliminate Freedom of Thought cannot be given. Thus, though those who oppose gay marriage do not have the right to prevent gays from marrying, they are perfectly free to continue holding opinions against gay marriage. It is my hope that they will change their minds; but they cannot be forced into it.
You might say that this is all well and good, but that obviously the anti-gay forces have the right to prevent gay marriage, because of the fact that they did. This is false. Just because they voted against gay marriage does not mean that they had the right to do so, in the same way that one who murders someone else did not have the right to do so.
You might also say that this does not matter, because I’m arguing from the perspective of classical liberty, and most of the anti-gay zealots are arguing from a religious standpoint, which can toss liberty out the window if it so pleases. But America was founded on liberty, and that is what its laws are supposed to represent. Naturally, this is quite often not the case, but that doesn’t mean that the ideal should vanish. Therefore, I conclude: Those who would seek to prevent gay marriage in this country have absolutely no right to do so, and votes in favor of items like Proposition 8 reject the very idea of America. This is an argument not from constitutionality, not from legality, not even from morality but from liberty, the foundational spirit of our country.