Who decides your rights?

Today's question: What should the legal standard be for prohibiting adults from engaging in behavior that doesn't appreciably hurt anyone else? Click here to read previous installments from this week's Dust-Up.

Creating new rights is up to the people, not the courtsPoint: Glen Lavy
Our final discussion boils down to the issue of how society should decide what is good or evil. The more diverse our society becomes, the more difficult it is to reach a consensus on such a matter. It isn't enough to say that in a pluralistic society, we just shouldn't regulate behavior that doesn't appreciably hurt anyone else. The question of appreciable harm is itself a judgment call. For example, many people view the California Supreme Court's redefinition of marriage as an assault on the family that will result in immense harm to children, while you obviously view it as a benefit to the family, Jon.

So how do we decide whether to protect behavior, leave it alone or prohibit it? Who decides? The choices are a majoritarian process or an elitist process. The marriage decision, as described by the court's dissents, was the latter.

In a democratic society, the majority of the people decide what to regulate based on their own views of morality. That is, the majority decides based on each individual's personal view of what is good, bad or neutral. Those majoritarian decisions are reflected in the California Constitution as well as in state statutes. The Constitution provides for the exercise of authority by the governor, the Legislature and the judiciary and prohibits each of them from exercising the powers of another brach. It reserves the ultimate power, however, to the people through the initiative process. The people have a constitutional right to decide how to define marriage.

The California Constitution was adopted by a majority vote. It specifically protects some things, such as the right to own property and the right to privacy. But it is more general when it comes to personal liberty and does not expressly protect the right to marry. In discussing the meaning of liberty (based on the federal, not the state, Constitution) in the 1948 interracial marriage case Perez vs. Sharp, the California Supreme Court said that personal liberty includes the general right "to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." That principle is firmly grounded in nearly a century of case law: Something is a constitutional right only if it was recognized at common law as essential to free men or is expressly stated in the Constitution. Marriage, including interracial unions, is one of those privileges long recognized at common law; same-sex "marriage" is not. When a court "finds" an implicit right in the Constitution that did not exist at common law, it circumvents the democratic process and violates the constitutional mandate of the separation of powers.

The more pluralistic our society becomes, the more important it is to respect the constitutional limitations on the powers of the judiciary as well as on the powers of the politicians. Politicians obviously do not have the authority to infringe on rights that are expressly protected in the Constitution, and the courts have a duty to evaluate whether they have violated rights. On the other hand, redefining terms and creating new rights are legislative functions, not judicial functions.

Also, Jon, there are three constitutional amendments in the federal Constitution designed to create an irrefutable presumption of equality among the races. One of them, the 14th Amendment, was the basis for the California Supreme Court's decision on interracial marriage. In contrast, Californians disagree that same-sex relationships should be recognized as being the same as marriage. They will most likely have the opportunity to express that disagreement again at the ballot box in November.

Glen Lavy is senior counsel with the Alliance Defense Fund, a legal alliance of Christian attorneys and like-minded organizations dedicated to protecting religious liberty, the sanctity of life, marriage and the family. The ADF and Lavy have been involved in same-sex marriage cases across the country, including the recent decision from the California Supreme Court.

Letting the majority vote away rights is dangerousCounterpoint: Jon W. Davidson
Although we certainly look at these issues differently, Glen, I do agree with you that one central question is: "Who should decide?" I'd phrase it as: "If no one else is harmed, what gives the majority any right to tell other people how they should live their lives? Is that the kind of society we want? Would you feel it was right if other people got to vote on whether your marriage is valid?"

Because that's what you are saying. Apparently, your view is that the public should have a say on who their neighbors get to marry. I think that's quite dangerous, and I hope the voters won't start us down that path in November.

When you say that allowing same-sex couples to marry is an "assault on the family," whose family do you mean? And how is it an assault on anyone's family if our plaintiffs, Alexsis Beach and Rachel Lederman, who have lived together for 21 years, are finally allowed to wed? And precisely whose children would be harmed by their marriage? Their 11- and 8-year-old sons, who previously said they wanted to tell the judge that their parents should be able to get married just like everyone else's, will be overjoyed and more protected than they are now. I challenge you to come up with any specific person who will suffer any harm by reason of this couple's marriage. I think your claim is nothing more than empty rhetoric.

I also disagree that, in our society, the majority of the people should decide what to regulate based solely on their own views of morality. I think most Americans believe in the overarching value of freedom and in "live and let live." Certainly the U.S. Supreme Court sides with me. In Lawrence vs. Texas, Lambda Legal's 2003 case in which the Supreme Court struck down laws criminalizing intimacy between consenting adults, the court expressly stated that "the fact that the governing majority in a state traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

I further disagree that gay people are seeking "new" rights. We simply want the same rights as everyone else, including what you refer to as the right at common law of free men (and, I'd add, women) to the pursuit of happiness. Why should anyone deny us that?

I need to add that a belief in the right to individual autonomy to make choices about one's own family relationships, including whether and whom to marry, is not elitist. Neither is a court's standing up for that right. Both are part of our national heritage of liberty -- and our national heritage of courts safeguarding that liberty as part of our country's system of checks and balances. Those are shared values that all people should be proud of and want to protect.

If voters this November do have to vote on the proposed constitutional amendment that out-of-state forces spent $2 million trying to qualify for the ballot, I hope they'll ask themselves whether other people's views of what's "good or bad" -- as you put it, Glen -- should get to control their personal decisions about who legally should get to be a part of their family. I may think that Britney Spears and Kevin Federline shouldn't have married, but I don't want to live in a society that can say that someone other than the two of them ought to make that decision. I believe that, when they think about it, most Californians will agree.

Jon W. Davidson is the legal director of Lambda Legal, a nonprofit legal organization dedicated to protecting the civil rights of lesbians, gay men, bisexuals, transgender people and those living with HIV. Lambda Legal was counsel in the case that led to last week's decision from the California Supreme Court.

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