I am a strong advocate of “States Rights” and a limited federal government that operates according to enumerated constitutional rights. But there is one “States Rights” argument that I believe is being misused for the specific purpose of undermining the separation between church and state. I’d like to tell you why.
The ability for the states to make decisions appropriate to their populations, which may not be universally appropriate to the nation is a foundational concept. The vibrancy of America comes from our many levels of diversity. That diversity is expressed regionally, state-wise, and even locally. It is critical that the electorates at all of those levels have the ability to democratically construct the societies most appropriate to their demographics and cultural desires.
But democracy is dangerous. America is a republic not a democracy for a reason. Pure democracy puts all minorities at a disadvantage. The glory of America is exactly the fact that it oversees local democracy with a (limited) federal structure that insures the fundamental rights to property ownership, contracts and agreements, privacy, and other “nationwide” values are protected and enforced. Left on its own local, state, and regional “democracy” would insure the loss of human and civil rights. Consider these examples:
1. If you ask the “majority” of Americans whether the US should be a “Christian nation”, MOST would likely say “yes”. This would build discrimination against, Jews, Muslims, Hindus, Buddhists, Jains, Shinto, Native Americans, Agnostics, “New Age” believers, Atheists, and many others right into the fabric of our society. American government is built to explicitly prohibit this.
2. If you ask the “majority” of Americans whether the US should be able to take private property, compensate the owner, and use that property for a “higher purpose” that benefits a local economy, they may well agree. That would build very dangerous problems into private property rights.
3. The “majority” of Americans believe that the wealthiest Americans should pay higher taxes because they can “afford” it. Do you know why? Because the majority of Americans are not it that category. Conversely, those with all the money wield enormous power that far offsets the “democracy” of the “little people”. We have to be able to balance democracy and corporate domination and that requires some amount of national oversight.
4. The antebellum south speaks for itself in demonstrating the disastrous consequences of indiscriminate democracy. Slave owners viewed slaves as “assets” and, where they were owned, they could VOTE to keep others captive. Only a national system of civil rights could finally overcome this.
This brings me to the reason that I believe “State’s Rights” is a fallacious political position with respect to California’s proposition 8.
In MOST states with fundamentalist Christian religious majorities, if you ask the “majority” of residents whether their state should allow “Gay Marriage”, they would answer “no”. This would build discrimination against the entire LGBT community right into the fabric of state laws and, as a whole, OUR society. (This is NOT just a Christian issue; it would be equally true were their US states dominated by Orthodox Jews, conservative Muslims, or other “conservative” religions; only because those groups are minorities does it appear that this is a Christian problem; so, I’m not pointing at Christians, I am pointing and any dogmatic, closed-minded believer).The FEDERALISM that so many of those conservative states claim to so cherish is built to (again) explicitly prohibit this. In other words, where states have to ability to EXCLUDE citizens, the federal government is compelled to oversee the law in such a way as to disallow it. Therefore, the states CAN’T be allowed to VOTE on gay marriage. It is NOT a “states rights” issue. It is PURELY a “human rights” issue and that is not for the states to decide.
That takes care of California. But what about the bigger issue of DOMA?
The “defense of marriage act” (DOMA) is an even more straightforward issue. You can’t construct laws based on religious doctrine. That is why we try to hard to separate church and state. EVERY church – EVERY religious institution – MUST be free to practice their religions without interference from the government. So long as those institutions don’t do anything that is unconstitutional, they can do whatever they want. For better or worse, doing anything else is a very slippery slope. That’s why we are stuck with appalling groups like the Westboro Baptist Church, Neo-Nazi groups, and preachers who want to burn Korans. We can’t stop them from practicing their belief systems. We CANNOT force any religious group to accept gay marriage. But….
…We can also not enact laws whose ONLY foundation is in religious doctrine. There are NO other viable arguments that support DOMA. Therefore it MUST be overturned on constitutional grounds.
Today, as we Jews celebrate the first day of Passover, and we remember the blessings of freedom, I am reminded of the person who taught me to advocate for unequivocally equal human rights. I’m reminded of the Passover Seder I once spent with the Gottfried family. With that image in my mind, in memory of Emily Gottfried, I urge the US Supreme Court to overturn both DOMA and California Prop 8. Love is love and sometimes it seems so rare that we humans need to respect, cherish, and praise it wherever we see it.
Hag Pesach Someach.