MUTABILITY (via Mike Daley):

Blacks Balk at Gay Marriage-Civil Rights Links (JAY LINDSAY, 11/28/03, Associated Press)

A new controversey has erupted around the issue of gay marriage, as some black leaders have been outraged by comparisons being drawn between the civil rights movement and the right of homosexuals to marry.

Observers have been drawing similarities between the two movements since the Massachusetts Supreme Court ruled last week that the state's constitution guarantees gay couples the right to marry. The court cited landmark laws that struck down bans on interracial marriage, but conservative black leaders object to the comparisons, arguing that sexual orientation is a choice.

The Rev. Talbert Swan II said the two struggles are not similar because blacks were lynched, denied property rights and declared inhuman.

"Homosexuality is a chosen lifestyle," he said. "I could not choose the color of my skin. ... For me to ride down the street and get profiled just because of my skin color is something a homosexual will never go through."

A poll released by the Pew Research Center for the People & the Press on Nov. 18, the day of the ruling, indicated 60 percent of blacks opposed gay marriage.

As the Reverend Sawn suggests, the issue is quite simply one of morality and choice--one is or is not a certain race or ethnicity; one chooses one's sexual partners.

Undermining Society's MoralsAlan Charles Raul, November 28, 2003, Washington Post)

The promotion of gay marriage is not the most devastating aspect of the Massachusetts Supreme Judicial Court's recent decision. The more destructive impact of the decision for society is the court's insidious denial of morality itself as a rational basis for legislation. This observation is not hyperbole or a mere rhetorical characterization of the Goodridge v. Department of Public Health decision. The Massachusetts justices actually quoted two opinions of the U.S. Supreme Court (the recent anti-anti-sodomy ruling in Lawrence v. Texas and an older anti-antiabortion ruling, Planned Parenthood v. Casey) to support the proposition that the legislature may not "mandate [a] moral code" for society at large. The courts, it would seem, have read a fundamental political choice into the Constitution that is not apparent from the face of the document itself -- that is, that individual desires must necessarily trump community interests whenever important issues are at stake.

These judicial pronouncements, therefore, constitute an appalling abnegation of popular sovereignty. In a republican form of government, which the Constitution guarantees for the United States, elected officials are meant to set social policy for the country. They do so by embodying their view of America's moral choices in law. (This is a particularly crucial manner for propagating morality in our republic because the Constitution rightly forbids the establishment of religion, the other major social vehicle for advancing morality across society.) In reality, legislatures discharge their moral mandates all the time, and not just in controversial areas such as abortion, gay rights, pornography and the like.

Animal rights, protection of endangered species, many zoning laws and a great deal of environmental protection -- especially wilderness conservation -- are based on moral imperatives (as well as related aesthetic preferences). Though utilitarian arguments can be offered to salvage these kinds of laws, those arguments in truth amount to mere rationalizations. The fact is that a majority of society wants its elected representatives to preserve, protect and promote these values independent of traditional cost-benefit, "what have you done for me lately" kind of analysis. Indeed, some of these choices can and do infringe individual liberty considerably: for example, protecting spotted owl habitat over jobs puts a lot of loggers out of work and their families in extremis. Likewise, zoning restrictions can deprive individuals of their ability to use their property and live their lives as they might otherwise prefer. Frequently, the socially constrained individuals will sue the state claiming that such legal restrictions "take" property or deprive them of "liberty" in violation of the Fifth Amendment, or constitute arbitrary and capricious governmental action. And while such plaintiffs sometimes do and should prevail in advancing their individual interests over those of the broader community, no one contends that the government does not have the legitimate power to promote the general welfare as popularly defined (subject, of course, to the specific constitutional rights of individuals and due regard for the protection of discrete and insular minorities bereft of meaningful political influence).

Posted by Orrin Judd at November 28, 2003 11:56 AM