Gay protesters of California's Proposition 8 are a bit confused about what civil rights are.I don't normally repost complete articles but this is an excellent analysis of civil rights and the questions surrounding California's Proposition 8 from the Comments on the Contemporary website:
Abysmal ignorance is no excuse Part One
Recent posts by two blogs commenting on the media coverage (See Self Evident Truths and US Political Scene) and subsequent comments concerning California's Proposition 8 controversy have prompted four (there may be more) observations:
1. Notwithstanding the prior rulings of the California Supreme Court, presently, the supporters of same-sex marriage are legally not being denied civil rights.
1. Notwithstanding the prior rulings of the California Supreme Court, presently, the supporters of same-sex marriage are legally not being denied civil rights.
The attacks on The Church of Jesus Christ of Latter-day Saints and other religious organizations and churches center around the idea that through their support of Proposition 8, those who advocate same-sex marriage have been denied their civil rights. A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, assembly, the right to vote, freedom from involuntary servitude, and the right to equality in public places. Civil rights are, by definition, not inherent, they are a creation of law. Neither are they simply desires, wants, wishes or feelings.
The current Constitutional law in California states, "Only marriage between a man and a woman is valid or recognized in California." Therefore, there is no "civil right" to an alternative definition of marriage because a same-sex marriage is not an enforceable right or privilege according to the current law. If a law is repealed or superseded by another law, any rights granted under the previous law or laws do not exist. As an example of this principle that the "right" has no separate existence from the law, in 1870 the Utah Territorial legislature passed an act giving women the right to vote becoming the first state or territory to give women the right to vote. However, the Federal Edmunds-Tucker Act took away the right to vote in 1887. Finally, with support of the LDS Church, the right to vote was granted again in 1895. Notwithstanding any and all arguments about the fundamental nature of the right to vote, that "right" only existed as long as the law supporting it existed.
The current Constitutional law in California states, "Only marriage between a man and a woman is valid or recognized in California." Therefore, there is no "civil right" to an alternative definition of marriage because a same-sex marriage is not an enforceable right or privilege according to the current law. If a law is repealed or superseded by another law, any rights granted under the previous law or laws do not exist. As an example of this principle that the "right" has no separate existence from the law, in 1870 the Utah Territorial legislature passed an act giving women the right to vote becoming the first state or territory to give women the right to vote. However, the Federal Edmunds-Tucker Act took away the right to vote in 1887. Finally, with support of the LDS Church, the right to vote was granted again in 1895. Notwithstanding any and all arguments about the fundamental nature of the right to vote, that "right" only existed as long as the law supporting it existed.
Civil marriage is a relationship defined by law. In some states, a man and a woman can live together, holding themselves out as spouses, for a specific statutory time period and obtain the legal benefits of a marriage without complying with the formal registration requirements. Such a marriage is often called a "common law" marriage. The existence of such a relationship points out the fact that marriage is not a civil right, but a creation of law. Here, I am not talking about religious beliefs. A person may have some fundamental beliefs about marriage originating in a religious belief about the relationship, but our legal system has long held that religious practices that impair the public interest do not fall under the first amendment. If marriage was or is the result of the existence of some identifiable civil right, then Reynolds v. United States would have to be overruled and to my knowledge, Reynolds is still good law in the United States.
The real question as to whether or not same-sex marriage involves some kind of "civil right" is whether or not a person who chooses a same-sex relationship thereby acquires some right or privilege not present before that person's voluntary choice? In other words, can anyone voluntarily acquire a "civil right?" If civil marriage is a creation of law and not a civil right, then only those complying with the law can have a marriage and a person's voluntary choice not to comply with the law does not give rise to any rights at all.
Put another way, can a person choose to be subject to discrimination and still complain of the discrimination? Even another way to put the question is if a person chooses not to marry at all, can that person claim discrimination merely because married couples are treated differently than a single person? What if a person was once married and then his or her spouse dies or there is a divorce? Does a widow/widower or divorcee have a right to claim discrimination merely because there is a category of married vs. unmarried? Why is there a married vs. unmarried category? Why not treat everyone as an individual rather than have a category of marriage at all? But that is the subject of another analysis. Is a person who chooses to work and therefore pays taxes, discriminated against as compared to a person who chooses not to work and therefor pays no taxes? Every time a law is passed, the law makes a discrimination between those who are subject to the law and those who are not. Those who are not subject to the law cannot argue that they have some "right" to receive the benefits (and assume the liabilities) of the law merely by virtue of the fact that they do not fall under its provisions including its definitions.
There is no legal difference between a single individual and one living in a same-sex marriage except in those jurisdictions that either recognize same-sex marriage or have defined some sort of domestic partnership arrangement. Why aren't single individuals marching in the streets to get the same consideration as married couples or domestic partners? Could it be that all of the laws are not particularly favorable to married couples and that there are some advantages to being single?Medicare is available only to those over 65 years of age. Is the rest of the population thereby denied a civil right? That is, a right to have affordable medical care? (I am sure that there would be arguments to that effect). But if I do not wish to have Medicare coverage at age 65 I do not have to enroll. If I choose not obtain Medicare coverage, can I then complain that I am being denied a civil right?
Summarizing, marriage is a creation of law. It is not an inherent state or characteristic. I can choose to be married or not. I cannot choose to be a specific race. Likewise, I cannot choose my national origin. Some would argue that I can choose my religion, but that is another discussion. Religion is specifically recognized by our Constitution as a basic right. Civil rights are also creations of law, as such, the "right" begins with the creation of the law and ends when the law is changed. Marriage is not the kind of legally created relationship that is the subject of a claim of civil right to marry. To hold otherwise would change the existing law in the U.S. going back to, at least, 1878.
Summarizing, marriage is a creation of law. It is not an inherent state or characteristic. I can choose to be married or not. I cannot choose to be a specific race. Likewise, I cannot choose my national origin. Some would argue that I can choose my religion, but that is another discussion. Religion is specifically recognized by our Constitution as a basic right. Civil rights are also creations of law, as such, the "right" begins with the creation of the law and ends when the law is changed. Marriage is not the kind of legally created relationship that is the subject of a claim of civil right to marry. To hold otherwise would change the existing law in the U.S. going back to, at least, 1878.
2. Charitable organizations (such as Churches) who donate to campaigns are not "state actors" and cannot deny people their civil rights by making such donations.
I have been taking cases to court for years arguing that homeowners associations are "state actors" for the purpose of civil rights violations, trying to make them subject to due process and equal protection. Despite my arguments, no court in the U.S. has yet to rule HOAs are state actors and subject to due process and equal protection under the U.S. Constitution. If I choose to purchase a home subject to an HOA am I then being denied a civil right? No, because the law does not extend civil rights protection to home ownership in a subdivision subject to a homeowners association. It is therefore useless to argue that I am being denied my civil rights by a homeowners association.
Likewise, it is equally as useless to argue that someone is denied a civil right because of a church's donation to a political campaign. Apparently, none of the people asserting the claim that they are being denied "civil rights" because of religious involvement in the California election have the slightest idea of how civil rights law operate. Civil rights come about as a result of laws and can only be obtained from the government and only government entities (i.e. state actors) or other entities specifically identified by statutes (i.e. employers). Only those identified by the law can be subject to civil rights violation claims. Those who attack the LDS Church on this issue are in the ignorant position of asserting that the Church is somehow acting on behalf of the government. As an further example, an extension of the detractors' position would allow someone to sue the Sierra Club for violating a civil right for contributions in support of a proposed environmental law.
Likewise, it is equally as useless to argue that someone is denied a civil right because of a church's donation to a political campaign. Apparently, none of the people asserting the claim that they are being denied "civil rights" because of religious involvement in the California election have the slightest idea of how civil rights law operate. Civil rights come about as a result of laws and can only be obtained from the government and only government entities (i.e. state actors) or other entities specifically identified by statutes (i.e. employers). Only those identified by the law can be subject to civil rights violation claims. Those who attack the LDS Church on this issue are in the ignorant position of asserting that the Church is somehow acting on behalf of the government. As an further example, an extension of the detractors' position would allow someone to sue the Sierra Club for violating a civil right for contributions in support of a proposed environmental law.
3. Individuals who donate to any cause are certainly protected from retaliation under the donors' rights to free speech, and the free exercise of their religious beliefs.
There is no legal theory at all that makes donors to a political cause liable to anyone as a result of the donation. Any harassment of the donors is the equivalent of terrorism, that is, the threat of harm to achieve a political end.
4. The consequences of upholding an extreme social position by establishing laws in favor of same-sex marriage are unimaginable and may end up destroying many social institutions, including, but not limited to our public school system.
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