California Gay Marriage Ban: Why Santorum's 'Intolerance' Remarks are Intolerant

In the two days since the California Supreme Court declared Proposition 8 unconstitutional, we have seen swift and utterly predictable responses from the Republican presidential candidates, and none more so than caucus star Rick Santorum.

The issue is not equal protection, but religious freedom, Santorum says. The victims of intolerance are the supporters of Proposition 8, not the same-sex couples it targets. And because he doesn't agree with the decision, the judges who made it must be shameless activists who twist the Constitution to fit their personal agendas.

Let's take this quote by quote:

1. 7M Californians had their rights stripped away today by activist 9th Circuit judges.
-- Twitter, Feb. 7

What rights did these 7 million Californians who voted for Proposition 8 have stripped away on Tuesday? Their right to hold a popular vote on other people's rights? Because the Founding Fathers did not provide for that.

If you don't believe me, ask John Adams:

Checks, however multiplied, will scarcely avail without an explicit admission of some limitation of the right of the majority to exercise sovereign authority over the individual citizen. ... That the desires of the majority of the people are often for injustice and inhumanity against the minority is demonstrated by every page of history.

Or James Madison:

The form of popular government ... enables it [the majority] to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. ... The majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.

If the right to subject other people's civil liberties to popular vote doesn't exist, the 9th Circuit ruling can't possibly have stripped it away.

Marriage, on the other hand, has been affirmed by the Supreme Court as one of the basic civil rights of man and one of the vital personal rights essential to the orderly pursuit of happiness by free men.

It is beyond me how people like Santorum can argue that the overturning of Proposition 8 takes their rights away, but deny that the prohibition of same-sex marriage takes same-sex couples' rights away.

2. Your belief of marriage between a man and a woman is purely irrational, based on hatred and bigotry: that's what [the court] just wrote.
-- McKinney, Texas, Feb. 8

The court did not pass judgment on the personal beliefs or motivations of Proposition 8 supporters or same-sex marriage opponents at large. It passed judgment on the legal merits of their attempt to impose those beliefs on all Californians. There is a big difference.

In its ruling, the court did write that supporters of Proposition 8 failed to demonstrate a rational basis for the law, but that isn't the same as calling the supporters themselves irrational. It also wrote that Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, but this, again, is not the same as calling the supporters themselves bigots.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently, the court wrote. And that was its one and only task: to determine whether there was a legitimate reason for Proposition 8, which does undeniably treat different classes of people differently, whether you support it or not.

Faced with that question, the court determined, quite reasonably, that supporters of Proposition 8 could not provide a legitimate reason to deny same-sex couples in California the label of marriage while granting them equivalent legal rights through civil unions. If marriage didn't entail any additional rights beyond the value of the word itself, what was the rationale for banning it?

The irrational determination doesn't mean that opponents of same-sex marriage have no reasoning behind their beliefs. They do have reasoning: mainly reasoning based on personal religious beliefs, which are protected under the First Amendment but cannot be imposed on others. What the court ruling meant was that these opponents' reasoning did not stand up to constitutional scrutiny -- and it didn't.

Put simply, every individual has the right to believe another group is inferior, but they do not have the right to institute laws that treat that group as inferior.

Hawkers of the judicial activism argument claim, as Justice Antonin Scalia wrote in his dissenting opinion in Romer v. Evans, that since the Constitution of the United States says nothing about this subject [homosexuality], it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.

Of course the Constitution doesn't say anything about homosexuality. Homosexuality wasn't an issue then. The Constitution doesn't mention campaign advertising either -- does that mean the Supreme Court overstepped its bounds by even considering the Citizens United case? No: the judicial branch is tasked with interpreting the Constitution and applying the general principles and rules it does enumerate to the specific issues that arise in modern society.

The Constitution states quite clearly that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ... or deny to any person within its jurisdiction the equal protection of the laws (emphasis added). Are same-sex couples citizens of the United States? Are they human beings within the jurisdiction of the states where they reside? Yes -- and therefore, they are included in the language of the 14th Amendment. That the Constitution doesn't address homosexuality specifically is wholly irrelevant.

3. Where is the tolerance of someone having a belief structure that is based in nature, that is based in reason, that is based in faith?
-- McKinney, Texas, Feb. 8

This isn't about tolerance of the belief structures of same-sex marriage opponents. It is about tolerance of every American's right to believe what they want and to apply those beliefs to their own lives, without being forced to live by anybody else's beliefs.

Santorum has every right to believe that homosexuality is a sin, that marriage is between a man and a woman, that gay families cannot be strong families, or whatever else he wants to believe, for whatever reasons he wants to believe it. That's what the First Amendment says.

But just as fundamentally, gay Americans have the right to be treated the same as straight Americans and to be afforded all the same privileges. That's what the 14th Amendment says.

Santorum seems to think that these two rights are mutually exclusive, and that religious freedom trumps equal protection. But they are not mutually exclusive at all.

Take a look at one of the talking points on the National Organization for Marriage's Web site: Gays and lesbians have a right to live as they choose; they don't have the right to redefine marriage for all of us.

How, exactly, is that more legitimate than the reverse statement: Straight couples have a right to live as they choose; they don't have the right to define marriage for all of us?

Why is the first argument more valid? Because straight couples are in the majority? Because no civilization has defined marriage as anything other than a union between one man and one woman? (Except, of course, for Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden... and clearly, these civilizations have crumbled under the weight of their immorality.)

More saliently, when did it become legitimate to argue that something is right just because it's always been that way?

And when did it become OK to argue that everyone has to respect your religious beliefs, but you don't have to respect other people's right to live their lives differently -- and to have the audacity to claim that you are the victim of intolerance?