Fights over Proposition 8 ignore real issues

The petty and annoying discourse surrounding Proposition 8 was foreshadowed by the inappropriate legal challenges launched by supporters before it was even approved for the Nov. 2008 ballot. As soon as the petition signatures were certified, the television ads began. Both sides of the debate raised about $40 million and saturated the airwaves with paranoid and inaccurate commercials. Depending on who you asked, banning, or constitutionally enshrining, same-sex marriage would result in catastrophe, human sacrifice, cats and dogs living together, mass hysteria and so on and so forth.
 Ads funded by proponents argued that allowing same-sex marriage would make churches lose tax-exempt status, expose citizens to lawsuits for their private moral beliefs and require government-run schools to transform innocent eight-year-olds into full-fledged homosexuals. The ads produced by opponents were equally childish. One featured Mormon missionaries breaking into a gay couple’s home to steal wedding rings and destroy legal documents, while another trotted out “Desperate Housewives” and “Pussycat Dolls” to lecture viewers about “fundamental rights.” The ads ran day and night on every channel, over and over.
 The protests were equally obnoxious and pointless. Supporters and opponents of Proposition 8 would line up on opposite sides of the street and yell at each other for hours on end. The single most futile and unpleasant local event was the march led by opponents down both sides of University Avenue, blocking traffic for hours, several days after the proposition had already passed. Similarly useless protests occurred around the state.
 The actual arguments either for or against  Proposition 8 were just as bad. Proponents said it was needed, ostensibly, to protect the “traditional ordering of society,” to protect the sanctity of marriage and to defend moral values. This utilitarian weighing of imagined costs and benefits is antithetical to the American conception of law. It has never been the purview of the government to promote morals of any kind or to consciously order society. Rather, this country was founded on the right of individuals to live their lives as they please so long as they don’t infringe on the rights of others. The order that society would eventually take was not defined within these rules, but was allowed to evolve freely.
 What distinguished the Constitution from the law of foreign nations was the idea that government did not bestow legal privileges onto citizens. The people, being free and having rights by nature, allowed government specific and enumerated powers to ensure those very rights were not violated. Though it provided for a democracy, the Constitution was deliberately designed to prevent the tyranny of the majority.
 Domestic partnerships already confer most of the benefits of marriage to same-sex couples and the sky has yet to fall. If conservatives are concerned about the legal ramifications same-sex marriage might have on public schools or the tax status of a church, and not godless sodomites themselves, then the problem lies with the legal recognition of all forms of marriage, not with homosexuals’ participation in it.
 The argument that Proposition 8 strips homosexuals of a fundamental right, as framed by its opponents, is equally suspect. Homosexuals, or any group of consenting adults for that matter, have the right to enter into a religious or legal union. Not allowing these unions is clearly a violation of natural rights. But this isn’t the issue that Proposition 8 opponents raise. Rather, they seek a legal entitlement to receive a license from the government to have a marriage performed by an agent of the state, subject to the terms and conditions laid out by the legislature. Marriage is an expression of freedom of association and freedom of contract. As such, obtaining a license to exercise this right is absurd.
 The proper role of government in marriage, and what gay rights activists should advocate, is for courts to enforce private contracts willingly agreed upon by consenting adults that stipulate terms for mutual property, custody of minor children, durable powers of attorney and the like. This arrangement would preclude the power to deny rights to those one doesn’t approve of, as well as the power to force others to recognize that which they do not approve.