Saturday, August 7, 2010

When Conservatives Fail to Defend Individual Rights

"Man's rights may not be left at the unilateral decision, the arbitrary
choice, the irrationality, the whim of another man."
-- Ayn Rand, "The Nature of Government", in

Capitalism: The Unknown Ideal

There is a certain segment of the US population that wants to have its cake and eat it, too.
No, I am not talking about progressives, and no, I am not talking about economics. I am talking about Conservatives, and I am talking about their ceaseless mission to make us all Christian, even if that means limiting our liberty.

I have not been paying much attention to politics lately--just a bit of my time here or there--because we are closing on the ranch we are investing in, and that is of greater value to me than fruitless arguing over which criminals ought to replace the current criminals in Washington City.

However, I am not so tied up with contracts, settlement statements, and amendments that I failed to notice that a California Federal Appeals Court struck down Proposition 8--a California referendum that banned civil marriage for gay and lesbian couples.

Though I had ignored this decision on Facebook and in blogs, it was discussed briefly at the Bernalillo County Libertarian Party social hour the other night, and I saw news items about it as well. Today though, I received two different links on my Facebook Wall, both of which surprised me in their absolute religious certainty and fundamental ignorance of the concept of rights. One, by the fiery Danny Gonzales is so typically over the top, that it practically begged a response. I did not give him one, because it would have been "pearls before swine", to quote the wrong testament.

Much of the commentary by the defense of marriage people focuses on the fact that the California Proposition 8 was approved by a majority of voters.

Yes, a majority of Californians did vote to deprive a certain class of people of their unalienable right to contract. And so what? The operative word here is "vote". A right is not granted by any state, constitution or court. It cannot be voted into place or voted away. A right is inherent in the nature of the individual, and must therefore apply to any individual in any situation. If only certain individuals can exercise a particular action freely, that action becomes a privilege--it is no longer being treated as a right. The American philosophy on rights, derived from the English Enlightenment, was clearly stated by Jefferson at the inception of the United States, the only nation in the world that was established on the foundation of the natural rights of man. In the Declaration of Independence, Jefferson wrote:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

Although the United States Constitution does not mention these rights in its body, it was written to create a government that was limited in scope to the protection of them, and the anti-Federalists also insisted upon adding the Bill of Rights, the first ten Amendments, in order to make sure that the federal government did not overstep its bounds and begin to violate the life, liberty and property of individual Americans.

For this reason, the federal government cannot establish any law, procedure or regulation that deprives any individual of his rights for any reason. Like all states that entered the Union after the ratification of the Constitution and as a condition of entry, California had to agree to uphold the Bill of Rights for its citizens, and in fact the California State Constitution has a rather elaborate Declaration of Rights, which is Article I of its Constitution, in which the state promises to uphold the equal protection clause from the 14th Amendment of the United States Constitution. Therefore, no state can establish a law that violates the rights of any individual citizen.

In all states of the Union, the rights of every person must be upheld, and are unalienable. That is they cannot be violated by a majority, and neither can any individual willingly give up those rights. And the Bill of Rights, in Amendments 9 & 10, makes it clear that the rights of the individual are unenummerated, whereas the duties of the government are limited.

These are the reasons that the judgment rendered by the US Court of Appeals with respect to the California Proposition 8 is correct. Californians cannot vote away the rights of any individual to life, liberty and property (which includes the right to contract) as a matter of civil law.

The conservatives will and do argue that gays contracting a marriage is a violation of their religious law. That may very well be, but certain Californians may not impose their religious law upon others, any more than any other American may do so. The Bill of Rights is quite clear that government "shall make no law respecting the establishment of religion nor prohibiting the free exercise thereof." Californians whose religions forbid gay marriages are certainly within their rights to morally condemn it, and their churches cannot be forced to conduct such marriage ceremonies, but neither can they interfere with the contractual rights of others who disagree and wish to establish such a relationship civilly or within another church.

For a state to forbid a certain individuals as a class to a contract that is sanctioned for others is discrimination, and establishes that contract as a privilege for some, and violates the liberty of everyone else. It cannot stand. There are two solutions: that the state sanctions that contract for all, or that the state does not sanction the contract for anyone.

Historically, the interference of the state into marriage began following the emancipation of slaves, and the requirement that couples seek the permission of the state to contract a marriage was established in order to prevent interracial marriages. Prior to that, marriage was the province of religion, and especially in the south, many poor people established common-law marriages without benefit of clergy. Although there were social costs to this kind of arrangement, there were no tax costs or benefits applied to marriage.

Free people should not accept the requirement to ask permission of the state to marry, any more than we should expect the state to interfere in any portion of our lives. Liberty means the ability to live our own lives and pursue our own happiness without interference from anybody, so long as we do not violate the life, liberty or property rights of another person.

As I said above, there are two possible solutions to this problem: that the state treat all contracts of marriage or partnership equally, or that the state stays out of marriage entirely. In order to protect everyone's liberty, I believe that the second proposition is far better. Hand marriage over to the religious congregations or to secular marriage establishments, each of which could establish it's own rules as to who may or may not marry together in that particular establishment. Some religions and/or secular establishments would require membership for a marriage to take place under its auspices, some would not. Some would refuse to marry people based on lifestyle, and others based on sexual orientation. Some would require pre-marital counseling, and others would require compatibility tests. All such establishments would be free to make their own rules; and all individuals who did not like their rules would be free to find or create an establishment that would accept them. Everyone would have an equal right to contract in the eyes of the law.

Conservatives who claim to support liberty, but at the same time insist on depriving others of their liberty for religious reasons are either confused about what liberty is, or they believe that they can have liberty while depriving others of its blessings. In religious terms, holiness cannot be achieved by force; an individual must choose it or it is meaningless.

It is time to recognize that the United States is not a Christian nation, that there is a difference between the fact that Christianity is the religion of a majority of Americans, and the establishment of the religion Christianity as the state-approved religion that is incumbent on all citizens to follow. The United States has no established religion and all Americans are free to practice their own religion, or none at all, without government sanction or preferment. But free exercise of one's religion can in no way be interpeted as using force against another person. One does not exercise a right by violating it.

Therefore, I believe the latest ruling from California is a good one. Not because it is popular. Not because a majority of people want it to be that way. But because it upholds the right of every individual to equal justice under the law.

In speaking of conservatives, Ayn Rand said this:

". . .if one wishes to gauge the relationship of freedom to the goals of today’s intellectuals, one may gauge it by the fact that the concept of individual rights is evaded, distorted, perverted and seldom discussed, most conspicuously seldom by the so-called “conservatives." --Ayn Rand, "Man's Rights", in Capitalism: The Unknown Ideal.

Conservatives want to have their liberty and eat it, too. They tend to promote their own right to economic freedom but wish to deprive others of personal liberty even in such intimate parts of their lives as whom they love and wish to marry. This is hypocrisy of the tallest order. It is neither holy nor good. Everyone must be free to choose or no one is, and in such a state of slavery, no one's actions can be moral.


Anonymous said...

Nice analysis.


HaynesBE said...

Thanks for another thoughtful, interesting post.
Here a a couple of related posts which you might find interesting:
Nullification and the Kentucky Resolutions
and The Metaphysics of Marriage


John said...

radical is to be different - different, and just, is most radical.
Since I was ejected from confirmation class at Hebrew school for pointing out the obvious and insisting on describing the truth of my observations - I knew that truth and radicalism are many times inextricably linked. The problem is that in order to move others many times it is not the righteous intent that becomes the energy that overcomes inertia and apathy.
Radicalism with compassion, radicalism where an there is an insistence that ears and eyes are open to all the wonder an horror of the world is a requirement.....
Oh and then there is justice, and there is a difference between justice and fairness. where equality and reason are untempered.
In the same fashion as the Navajo, the pueblos, and some of the cultures of the east there is always a stitch left undone, a spot unpainted. Tradition steeped in the knowledge that we are not complete nor perfect except in our acknowledgment of the infinite and our desire to achieve perfection. I see our political situation similar in that the founders of the present Republic left to the future many vague areas where we as the heirs of the experiment must find answers. I look forward to continuing a dialogue as I believe, though you have a differing perspective we have a similar center and a common interest in truth and clarity.