Right Result Wrong ReasonWritten by Kenneth Sharp | | email@example.com
Senator Rob Portman (R. OH) has changed his stance on gay marriage after revealing he has a gay son. Immediately there was backlash from both the left and the right. Both are claiming his change of heart was motivated by his love for his child and not a circumspect ideological shift. Rightfully, no one challenges his desire to have his son live a full and rewarding life; the criticisms are from those who see him as either abandoning his core religious values and of those who elected him in favor of family, or that he only changed his stance when he was personally affected. This is a perfect time to examine what representative democracy and rule of law are about.
We are not a democracy. The Founders explicitly avoided direct democracy as it has always devolved into “mob rule” and/or the oppression of the minority. In some aspect of our lives we are all minorities. We elect representatives to govern in our stead. We should not elect bullies for our cause. These representatives are not there to express the dominant view of the majority who elected them, but are to represent all in their immediate polity under the rule of law. This rule of law is also not meant to be subject to the whims of the powerful or the majority. The Constitution of the United States is the basis for the rule of law by which our representatives are supposed to adhere.
This means we need to examine the rules which our laws are supposed to follow and why. The Constitution is a framework for governance based on the respect for inalienable rights. We may differ on the source of these rights, but not that they reside with each individual. Included is the right of conscience: the right to follow the religious teachings we deem true, to speak, write and advocate for our ideas. Also included is the right of property: most notably the rights to our bodies, minds and our labor. The fusion of these two lead to our paths in life-our pursuits of happiness. In any society we cannot carry out our pursuits while interacting in the many ways we must with others without some structure. This structure is government, a matter of convenience so we do not have to “reinvent the wheel” each time we interact.
Senator Portman initially failed to follow the rule of law in favor of the majority of his supporters and Party. One does not have to agree with gay rights, including marriage, to conclude that in society, a person can follow their own conscience on the issue. We (in the form of government) cannot deny basic rights based on gender. That is precisely what is done by denying gay marriage. Under no circumstances would this require a religious group to sanction or perform such marriages, if that would be a violation of their right of conscience. Government is meant to be apart from all bias based on individual conscience, especially in matters of religion. Government should not favor one group over another based on religious or gender preferences. This is precisely what is happening, mostly through the tax code. In the eyes of the State marriage is a contract between two parties. Only the common rules of contract eligibility should apply. Senator Portman and others, in both Major Parties, too often follow Party line and popular view over rule of law. When they do change, it is less often by reasoned, critical thinking or the belief in individual rights than it is some personal crisis leading to a conversion of expediency.
This shouldn’t be a surprise. It can be argued that we have never practiced the full promise of rights we claim. From our Founding, compromise led us from the rule of law to the will of the powerful or the majority. Slavery was condoned; women had few rights and no political voice and minorities have had to constantly battle to achieve parity under the law, even today. We espouse ideals that we never live up to. Until “We the People” means “We the People” we will never get there. There will always be people acting or speaking in a way you oppose, but unless they are actively doing it to you, it is their right. If we choose to vote for proxy bullies rather than the respect for the rule of law we can count on the continued decay of rights until tyranny seems a plausible solution. Then we all lose.
The conversion of Sen. Portman (and others) would be better grounded and easier to accept if based on inalienable rights, rule of law and explicitly stated as such. In other words, if based on the promise of the Constitution.