The No's Doth Protest Too Much

I’m all for political protest.  Unlike some recently judicially created rights, free speech and political protest is actually a fundamental right, with a long and well respected history of Constitutional protection, both at the state and federal levels.  I’ve watched, as I’m sure many have, the political upheaval and fallout from California’s citizens exercising their fundamental right to amend the constitution of their own state.   That is still a protected fundamental right isn’t it?–the right of the people to vote, to express their mandate at the ballot box.  That’s still a protected fundamental right, reserved by the people to define the social and political mandates of society?  I’ve tried to channel some thoughts in response to all this protest–in no particular order of importance:

1.  The right of the minority to protest is certainly a valid exercise of their fundamental rights, provided it is kept within reasonable time, place, and manner restrictions.  They can even carry obnoxious, mean spirited and bigoted messages on their signs:

2.  What is troubling, however, is the targeting of a specific religous group for the exercise of, again, their own fundamental constitutional rights to express their religious and political views at the ballot box:

Supporters of gay marriage, frustrated over a ballot-box defeat in California, have channeled much of their anger toward the towering white spires of Mormon temples.

Since the measure’s passage last week, media outlets reported chants of “Mormon scum” and slurs against church founder Joseph Smith at a demonstration outside a Los Angeles-area temple, and a church meeting-house was vandalized. More Mormon-specific protests are in the works.

The backlash against Mormons has ignited a debate over whether the church deserves to be singled out for what opponents believe was a dishonest campaign or is an easy political target as a minority religion that has taken plenty of lumps.

“I think it is a purely tactical reaction from those who are supporting gay marriage because if it can be made to appear the opposition is essentially one religion that is, frankly, an often misunderstood religion, it’s easier to make the case that the other side is reasonable,” said Michael Otterson, spokesman for the Church of Jesus Christ of Latter-day Saints, or the Mormon church.

3.  If there is any question that so called gay rights and religious liberties are not on a collision course, the recent targeting and vilification of a specific religious group should answer that question loud and clear:

See also here, here and here

4.  The vast majority of appellate courts across America have rejected the so-called “fundamental right” to gay marriage.  When asked in 1972 in Baker v Nelson, to consider this same legal question, the United States Supreme Court dismissed the appeal for lack of a federal question.  Only two of 50 states currently recognize such a right.  Forty four states have statutory definitions of marriage as between a man and woman.  Now, thirty of those states have constitutional amendments defining marriage between a man and woman.  Three of those amendments were enacted just last week, in Arizona, Florida and California.  The votes in Florida and Arizona were not even close.  And, there’s a reason for the number of constitutional amendments.  The reason is activist judges making up new constitutional and fundamental rights out of whole cloth, with no constitutional precedent in support.  That is why a majority of states have enshrined a man/woman definition of marriage right into their constitution.

So, the question naturally arises, are all 48 of the majority of The United States which deny gay marriage comprised of bigoted hateful people?  Are 48 out of the 50 states improperly discriminating against gays by denying them the so-called fundamental right of gay marriage?  Do the vast majority of American voters, who have spoken on this issue throughout the 48 other states hate gays?  Is gay marriage only a fundamental right in Connecticut and Massachusetts and not the other 48 states?  How can that be?  Can you imagine not being able to vote in 48 of the 50 states, or politically protest and express your religious and political opinions in 48 of 50 states?

If gay marriage is a fundamental a right so objectively and deeply rooted in this Nation’s history and tradition, and so implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if  gay marriage were sacrificed–how can 48 of the 50 states not recognize such a fundamental right?  How can this be?  Why have gay rights advocates not petitioned the federal courts to enforce this fundamental right nationwide?  The 14th Amendment allows the United States federal courts to require states to recognize and protect fundamental rights.  If gay marriage were truly such a fundamental right–why aren’t the federal courts falling over themselves to bring all the other 48 renegade, bigoted and hateful states into line?

5.  Just exactly what rights have been lost?  Our lesbian and gay sisters and brothers have all the same rights afforded under California Law to married man/woman couples.  Is anyone actually sitting at the back of the bus?  Is anyone forced to use separate bathrooms, lunch counters, drinking fountains, housing, business facilities?  No!  Kaimi has a very good post up over at BCC, which if you haven’t seen you should.

California is one of the most, if not the most progressive state in the protection of gay rights.  California has an extremely comprehensive domestic partnership statutory framework.  There are anti-discrimination laws codified in California’s Unruh Act which protect and have protected lesbians and gays for many years in California.  But, to listen to the recent spate of political protests one would come away thinking an entire minority has been cast off from civilized society to wander in the rightless wilderness of limbo forever.  That is simply not the case.

6.  Only two percent of California residents are members of the Church of Jesus Christ of Latter-day Saints.  Their votes could not possibly have carried Proposition 8 to victory.  The media analysis reflects very strong support from the African-America community.  Why are there not protests is south central Los Angeles or Compton?  Hispanic Americans also favored Proposition 8.  How come no protests is East Los Angeles?  Is it because it is more politically popular to pick on Mormons because of their religious beliefs?  Be careful if that is the road down which gay rights activists dare to tread.

7.   Isn’t is just a bit late for the No on 8 supporters to come out of the woodwork after November 4 to express their political viewpoint?  Of course, they have a constitutionally protected fundamental right to these protests; but, where they hell were they on the second Tuesday of November, 2008?  And, why don’t they propose their own constitutional amendment, follow the same constitutionally allowable amendment process?  Why not propose their ideas and their own definition of marriage before the voters?  They could draft an amendment saying something like Marriage between two persons of the same gender is valid and recognized in California.  Put that simple proposition before the voters, and have an up or down vote.  That is what will change the California constitution.  Parading up and down Santa Monica Boulevard with hate signs doesn’t get the job done.

The No’s Doth Protest Too Much