Yes 49%, No 45%- TOO CLOSE TO CALL

Guest Column by Jay Hughes

On Tuesday, 7 November 2006, voters will decide if Virginia’s Constitution needs a Marriage Amendment.  I share my conservative colleagues’ concern regarding marriage in our Commonwealth and our country.  We must decide what is appropriate for government to do, with the rest remaining the responsibility of individuals.

Marriage is the quintessential issue left to individuals, based on their personal moral or religious convictions and ties to social and religious institutions.  Greater government involvement in marriage will increase government power and jeopardize the liberties of all.

The preceding sentence should be the textbook definition of conservative anathema.  On November 7, I will be voting against Ballot Question #1, and I’d like to share my reasons in the hope that you will join me in voting no.

Recently, many of my conservative colleagues have sought to mischaracterize the U.S. Supreme Court’s 2003 Lawrence v. Texas decision.  Some have argued that the Court’s decision discerned a right to sodomy in the U.S. Constitution.  This is an inaccurate characterization of the decision, since the language of the court’s reasoning invoked “liberty” rather than “rights” in determining that the Constitution prohibits the majority from criminalizing the adult, private, consensual sexual behavior of a minority simply because it finds the behavior distasteful or offensive. As conservatives, we are the first to argue that nobody has a right to an offensive-free life.

As a result, many conservatives argue that the amendment is needed to prevent activist judges from “bench legislating” gay marriage into law.  As a conservative, I am always deeply concerned with judicial activism.  However, this argument is unsubstantiated.  This amendment will only prevent the Virginia Supreme Court (and lower courts) from “bench legislation”.  Ironically enough, the Virginia Supreme Court, like most of the rest of the courts in the state, is renowned for its judicial restraint. This should come as no surprise, since all Virginia judges are elected by a state legislature dominated by conservative Republicans.

Based on past performance, it is reasonable to anticipate that the Virginia Supreme Court will NOT impose gay marriage on the Commonwealth’s citizens.  In fact, should the Virginia Supreme Court discover a heretofore unknown penchant for activism, the Commonwealth’s Constitution could always be amended after the fact.

The Virginia Republican Party Creed states: “…the free enterprise system is the most productive supplier of human needs and economic justice….” As a conservative, I consider those words axiomatic.

The foundation of a free-enterprise/free-market economic system is the individual’s ability to earn and dispose of legitimate property sans government interference. Private property is essential to maintenance of our free market/free enterprise system. In the wake of the U.S. Supreme Court’s Kelo v. New London decision, private property rights are jeopardized. The last thing the Commonwealth should do is risk further private property rights erosion by approving this amendment.

You may ask, what is the relationship of the proposed amendment to private property? The amendment’s nebulous language is the problem. It puts in limbo the right of unmarried individuals to dispose of their property in the way they see fit, whether in life or after death.

The law must strive for precision, and nothing in the Virginia Code defines the cloudy terms of the proposed amendment’s second and third sentences. Asking government to “approximate” what is (or is not) marriage is asking for trouble. All it takes is one activist judge to render null and void a contract, trust, or will prescribing the disposition of property because he suspects a relationship is “too close” to marriage for its own good. When there is sufficient vagueness of law, the proper course is to err on the side of caution. When it comes to government, non-action is preferable to imprecise, poorly worded law.

In this debate, some of my conservative colleagues have demonstrated their misunderstanding of a “right.” Many amendment proponents posit a child has a right to a mother and a father. They maintain failure to approve the proposed amendment would pave the way for gay marriage, and, ultimately, gay adoption. As cold and heartless as it sounds, children do not have a right to both a mother and a father. It may be an ideal, but it’s not a right. Once you understand what an inalienable right is, you’ll be glad they don’t. First, what is a right?

Conservative economist Walter Williams of George Mason University offers, in my opinion, the most comprehensive and concise definition: “A right is something that can exist simultaneously among individuals without incurring any additional cost or obligation to another, except for that of non-interference.”

For example, a person exercises First Amendment rights by dashing off a letter to an editor criticizing government. That exercise inflicts no physical or material cost to another citizen. Williams’ definition facilitates the distinction between rights and goods/services. It has become very popular to claim that people have a right to health care. That definition clearly shows that health care is a combination of goods and services and not a right. In order for government to secure a right to free, universal health care, government must compel health-care professionals and manufacturers to provide their services and goods for free. In essence, they would become slave labor. Alternatively, it will require a redistribution of resources through tax increases and government services. Either way, it means spending other people’s money or, as the saying goes, “robbing Peter to pay Paul.” Health care is not a “right” because it requires the consumption of resources. It means violating the authentic rights of some to pay for the inauthentic “rights” of others.

Given this understanding, why do classical liberals like to modify the noun “right” with the adjective “inalienable”? Another definition is a good place to start. Merriam-Webster’s Collegiate Dictionary defines “inalienable” as “incapable of being alienated, transferred or surrendered” (emphasis added). In other words, the individual is incapable of surrendering his inalienable rights even if unwanted. (The most stark example: A person cannot sell himself into slavery, because slavery involves giving up inalienable rights to liberty and property.) If governments are instituted among people to secure those inalienable rights, should government secure those rights even if the individual does not want them?

The answer most certainly is “yes”. If a right is inalienable then the state must secure that right for the individual. Which means if a child has a “right” to two, opposite-sex parents then the government must secure that right for the child. Because of a right to life, we place orphans in orphanages or foster homes rather then leave them in the streets to fend for themselves. We respect the tradition that a child should be with two opposite-sex parents because we spend a great deal of government resources to place them with adoptive parents. However, what happens if one biological parent is killed?

If a child has an inalienable right to two, opposite-sex parents, then the government has a duty to secure that child another parent without regard to the surviving parent’s wishes.

Remember, a central argument for the marriage amendment is two-fold: 1. nobody has a right to get married and 2. children have a right to two, opposite-sex parents. A right always trumps a tradition. The state’s obligation to secure that child’s right means it cannot chance that the surviving parent will secure that child’s right to a replacement parent via remarriage. So, the state must select a replacement parent for the child without regard to the surviving parent’s wishes – even if that parent wishes to raise his or her children as a single mother or father. That’s right, by the logic of the amendment’s proponents, we are now at a place where the state would be selecting mates for widows and widowers with children. Does this sound extremely draconian, Orwellian, and just plain crazy to you? I certainly hope so; it definitely sounds that way to me.

But this is what happens when we claim that a child has a “right” to two opposite-sex parents. In our zeal to provide the best environment for children to grow, we must be sure that we keep government to the smallest, proper role possible and give loving, stable parents the greatest role.

Our Commonwealth has some of the lowest crime rates and lowest unemployment rates in the nation. Businesses flock to the Commonwealth because our schools and universities produce a robustly educated workforce. All of this is possible because Virginia families are already instilling decent morals and ethics in our children without intrusive government. Our Commonwealth and its families are doing just fine without this amendment. Virginia families “ain’t broke” and they don’t need “a government fixin’”. I hope that you will join me on Tuesday and vote NO on Ballot Question #1.

Comments

[Breaux]

Fantastic argument. Just another reason to be a proud Virginian.

[Vivian J. Paige]

Very good post.

NLS- I am not a supporter of homosexual marrage but I respect your view on this issue and will vote no on tuesday.

[Rick Sincere]

The point that the logic of the amendment supporters' position leads to the government forcing single parents -- even widows and widowers -- to marry against their will is coldly compelling.

If every child has a "right" to two parents, then the government must step in and provide the one that's missing. It takes a village, remember?

[bye bye George]

I am happy with the vote No position. But we have a right to life and therefore to healthcare. I look forward to debating that one with you.

[Terry]

If this passes I hope they put some kind of divorce measure on the ballot in the next election. I think our ridiculously high divorce rate is doing more to "harm" "traditional marriage" then "gay marriage" ever could.

[Lo Scrivano]

Terry,
I would suggest reading
http://vafederalist.blogspot.com/2006/11/marriage-amendment-questions-and-some.html

[akaison]

the contortions that your post requires is interesting. I agree with the result - vote no. I just find the contortions anti what our system of governance in a neo classical liberal sense is about. but nevertheless GOTV.

[akaison]

incidentally- as I have said elsewhere- I have been doing some GOTV with moveon.org and I have to say that the program this year is incredibly well organized, and thoughtout. Having done poll monitoring in 2004, and phonebanking, I am impressed at how far the left has come in just two years. If what I have seen is representative- then our GOTV while maybe not entirely matching that of the loonies, is never the less incredible. Anyone who like me wants a progressive revital in this country should consider doing some GOTV- its great if for no other reason than you get to talk to other voters of all strips. it reminded me that not eveyrone is a wingnut. peace

[Terry]

Lo Scrivano, what a load of garbage. Yes, please, let's put ALL people who desire to get married through mandatory counseling as a means to protect the "sanctity" of marriage. I would bet, that if we made it harder for people to get divorced the domestic violence rates in this country would SKY ROCKET. How is 2 men(or women) getting recognized legal rights going to in any way affect ANY heterosexual marriage in this country?

[t]

Too... many... words... Jay Hughes.

t will make it much simpler for you: Vote YES to protect traditional marriage.

t speaks.

[Not Huey Long]

Oh yes, what a heavenly-ordained arguement! Who needs all those pesky, well-thought words and phrases when you have "sound-bytes" to satisfy the ideological urges of nincompoops???

t, did you hear that God has endorsed Jim Webb?Maybe you should rethink your vote for Senate?!?

NHL writes.

[Not Mary Matalin]

NHL - please don't think the simple post from 't' represents all God-fearing Virginia voters. Many thanks to Jay Hughes for posting a compelling secular argument against the amendment. I offer my previously posted comments concerning religious reasons to vote against the amendment on Tuesday:

I am Republican who voted for Bush twice. I’m voting for Allen. I consistently write-in candidates against Bobby Scott (Winsome notwithstanding). I’m also a Christian who will vote _against_ the marriage amendment for sound religious reasons.

This amendment is unequivocally discriminatory and motivated by bigoted passions. The gospels of Matthew, Mark, and Luke all quote Jesus as saying the greatest commandments are to love God with all your heart and love your neighbor as yourself. (Mt 22:34-40; Mk 12:29-31; Lk 10:25-28.) I am unaware of any of Jesus’ teachings that ask us to use our control of the law to injure others.

Bob McDonnell takes time to compose lengthy missives about the massive list of things (in that politician’s opinion) the amendment will _not_ do to the point of begging the question of what it will, in fact, do.

What goal does this amendment achieve that should sway a Christian to ignore Christ’s commandment to love thy neighbor as thyself?

What other than memorializing mean-spirited bigotry in our Constitution does this do?

Shame on those who trade a few passages from Mosaic code for Christ’s clear and direct message and call it defending biblical marriage….

[Not Huey Long]

NMM, I appreciate your persuasive comments about the marriage amendment from a true Christian perspective. Regrettably, your comments are not shared by the vast majority of your peers.

Unfortunately, the evangelical vote will enshrine bigotry into George Mason's fine body of work and negatively impact Virginians. I'm ashamed of what future generations will think of us.

[voteNOva]

Not Huey:
The election is TIED! And, here you are proclaiming defeat. Shame on you. Get out there and talk with another voter. Sign up to work a poll. We can win on Tuesday, but not if we don't believe we can!
CG2

[Lo Scrivano]

Need, you all be reminded, Gay marriage is already illegal. So how is this law creating bigotry?

[Doug in Mount Vernon]

NHL, as the polls demonstrate, it is NOT a foregone conclusion what the result will be.

Please refrain from unnecessary doomsday until it happens.

Have faith in the good judgment of many Virginians. The fact that it IS so close, and that opponents are effectively closing the gap speaks volumes for the noggins of many Virginians.

If the amendment does still end up passing, it will likely be simply because the education efforts fell just short and didn't quite reach enough people.

[Not Huey Long]

BIGOTRY: stubborn and complete intolerance of any creed, belief, or opinion that differs from one's own. — Synonyms: narrow-mindedness, bias, discrimination.

[Lo Scrivano]

This law changes nothing on gay marriage, so how do you get bigotry out of it?

[Lo Scrivano]

If that definition is correct, then you are displaying bigotry of my belief that Homosexuality is wrong...your definition has far reaching consequences.

[ifthethunderdontgetya]

Lo Sciviano, why don't you send an email to Ken Mehlman.

http://www.firedoglake.com/2006/11/05/face-the-snark-21/

I'm sure he's just waiting for your message.

[Not Huey Long]

I really don't wish to write a thesis based on your flawed logic, but here's the Cliff Notes version. You're writing discrimination into a document designed to grant rights not restrict them!! If you can't get that concept, then well, what's there really to say.

Lo, have you ever met a gay person?

[David]

Let me see if I understand Lo correctly: 'You're discriminating against me if you don't allow me to discriminate against those of whom I don't approve.'

I see.

As voteNOva says, it's now a dead heat. Work harder.

[Lo Scrivano]

That statement was based on NHL's post about the def. of bigotry.
NHL,
You are the one who posted "BIGOTRY: stubborn and complete intolerance of any creed, belief, or opinion that differs from one's own. — Synonyms: narrow-mindedness, bias, discrimination."

If this be the true def. then you are displaying bigotry by being "completly intollerant of my belief."

[Terry M]

Just so it is clear..Terry is not Terry M.

[akaison]

David,

Yes, that's exactly what Lo is doing. It's the last resort of the christian right- when they can't argue a position, they resort to feelings of being persecuted. It's one of the more unfortunately aspect of the pyschology: because they can't get their way in telling everyone else what to do, that means everyone is out to get them. I have yet to understand how them getting into heaven is dependent on them writing their faith into the laws that govern christian and non christian a like. but, then, I am a person of faith who believes in a secular government rather than a theocracy so maybe I am not suppose to get it.

[Not Huey Long]

Lo, have you ever met an openly gay couple, or for that matter, a gay person? Why do you have such hostile feelings towards the gay community? Is your opinion a symptom of an intolerant up-bringing or was your disgust fostered in some other manner?

[David]

For example, there is the manner in which it was fostered in Pastor Ted.

Pay close attention to these especially angry, fixated anti-gay activists. This issue is clearly very personal for them.