Now imagine that in, say, New Jersey a proposition to allow abortion--we'll call it Proposition 18--is passed by a pro-abortion majority. Immediately, the pro-life side cries foul, and claims that those who worked to get Proposition 18 passed were motivated by bias and hatred against the unborn. As they challenge Proposition 18 in court, they insist that free-speech law didn't apply, and that they should have the right to seize and review all sorts of communications and records from the "Yes on 18" side to find examples of this unconstitutional bigotry and hatred against the unborn.
Sound unbelievable? It is--and it's also happening, not in regard to a fictional Proposition 18, but in regard to the real Proposition 8, which banned gay marriage in California. Here's the story:
California's high-profile federal lawsuit against Proposition 8, which begins in court on January 11, appears to be about creating a federal case for same sex marriage. But in fact, much more is at stake. Lurking in the shadows of this case is a breathtaking expansion of judicial interference with perfectly valid elections. Whatever your views about Proposition 8, we surely should be able to agree that special interest groups can’t go into court to overturn elections they don’t like.
Ted Olsen and David Boies want to convince the court that the alleged anti-gay bias of Proposition 8 supporters should invalidate the election. But first, they have to find some such bias. This is why Olsen and Boies sought the trial court’s permission to demand confidential campaign documents. They want free reign to rummage around through the Prop 8 campaign’s computers and filing cabinets, looking for evidence of this supposed meanness. The trial judge had ruled that Prop 8 proponents had no First Amendment privilege, and therefore had to hand over all communications among members of the campaign and their contractors.
The Ninth Circuit Court issued a preliminary order against the enforcement of these outrageous demands. While this is a welcome development, it is only a temporary reprieve for the integrity of the electoral process. The Ninth Circuit should completely overrule the trial court.
Now, I've heard some gay-marriage supporters say that any election which votes against people's "rights" is automatically invalid and must be overruled by a court. That, however, begs two questions: first, that marriage is a right, and second, that it is a right for which the gender of the participants is irrelevant.
However, neither of those questions are settled matters. Marriage looks more like a privilege than a right, since it is not available at all times to all peoples or even at most times to most peoples, but has been a rather restricted state from its inception. Unlike, say, the right to free speech or freedom of assembly, marriage can only be entered into by people who meet certain criteria, and in all but five states those criteria include gender differentiation. If marriage is a right, why do we bar people from it based on age, present marital status, degree of kinship, and the like? How can a right exist to something so inherently exclusive?
The second, that the genders of the participants or any notion that there should be a gender difference is an arbitrary qualification with no possible significance, is what the whole debate is about. And it is not, by and large, a debate motivated by some sort of irrational hatred; it is a debate about what the definition of "marriage" is or ought to be, and whether there is anything about the union of a man and a woman which is different in the eyes of the state from that of two men or two women.
Whatever the outcome of the trial in California--or, eventually, the Supreme Court--may be, the gay-rights supporters do not do themselves any favors with the strategy of election nullification, of insisting that any election that does not go their way could only be the result of hatred and bigotry, and that only elections which advance the gay agenda are permissible. Such an attitude is really a form of totalitarian thinking, in which only pre-determined and acceptable outcomes are allowed to prevail, and all others rejected--and what one special interest group succeeds in doing today, another may do tomorrow, at which point the gay-rights groups may eventually find themselves on the receiving end of the attempt at bullying, intimidation, and election nullification which they have adopted as their strategy of choice in this debate.