Democracy and Liberty Continued…

Indiana’s very “Christian” Governor has come out (no pun intended) in favor of letting Hoosiers vote on whether the state should recognize same-sex marriages. He has also disclaimed any intent to discriminate–why bless my grits, honey, he’s all in favor of people choosing their own lifestyles! Surely it can’t be discriminatory to deny civil recognition to non-biblical unions, even if that recognition does carry with it 1030+ rights and privileges.

After all, what’s a little tax inequity among friends?

As a member of Indiana’s legislature assured me the last time I testified against HJR 6 or whatever the number was–there is absolutely no discrimination involved here. The same marriage laws apply to straight and gay people–they can all marry people of the opposite sex.

And rich and poor people alike are prohibited from sleeping under bridges.

The problem with voting on a constitutional amendment that would deny certain people rights that our laws deem to be fundamental is that–in our system, under our Constitution–rights are not subject to the whims of the majority. That’s why they are rights, rather than privileges. No one said it better than Justice Jackson, in West Virginia Board of Education v. Barnette. In my all-time favorite Supreme Court quote, Jackson wrote

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein..The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Presumably, Governor Pence and Brian Bosma both slept through Constitutional Law. Although I have a sneaking suspicion that they might suddenly remember this principle if they faced mean-spirited, politically-motivated efforts to vote on their fundamental rights.


  1. Of course there is always the pesky question as to what kinds of rights are so basic and fundamental that the majority simply has no right to pass upon them. Doug Masson has a piece up on his blog in which he says:

    “In the absence of government, how do these natural rights manifest themselves in the real world? I say they don’t exist at all until we say they do.

    Rights are things that we as a people have decided we ought to have and have implemented these policy decisions through government enforcement. Humans have the rights they bestow upon themselves using government as a tool.”

    I happen to think that the nature of the right to marry is one of those things that a reasonable application of the Equal Protection Clause of the Constitution (one of those foundational policy decisions of humans on this side of the Pond) takes out of the hands of the majority. And since we all purport to honor that document, it should end the inquiry. But clearly there is another viewpoint, driven partly by a distaste for “unelected judges making law”, as overblown as that slogan often is.

    If the amendment that Pence, despite his official non-role in the process, espouses, goes to Hoosier voters in November 2014, the people should at least weigh what they would be doing; Besides banning same sex marriage, the measure would effectively removing from duly elected Indiana lawmakers the ability to to virtually anything in “substantially similar” areas. They would not have the ability to correct, for example, the procedural injustice of a same sex couple legally married elsewhere from obtaining a simple divorce here, a right all heterosexual couples take for granted when the bloom of marital bliss has faded.

  2. “Effectively removing” in the last paragraph should be “effectively remove”, and “to to” should be “to do”. Sheila, you should stop procrastinating about buying that autocorrecting comment software you’ve been talking about. (:

  3. Below I have copied and pasted Article XVI Amendments from the Indiana Constitution; Pence has more than a year to find a way to remove this subject, with all its inclusions, from public vote in 2014. Were any of us allowed to vote for or against school vouchers, putting pubic tax dollars into primarily religion bases schools, which is against the Indiana Constitution and the Constituion of the United States of America or supporting sports venues? No one stopped Daniels from pushing his pet projects through the Legislature; who is left to stop Pence? LGBT residents are busy trying to survive this economy, live their own lives and can only spend part-time fighting for their rights. Elected officials are paid and can spend all the time needed to deny these rights.

    Article XVI – Amendments

    Section 1. (a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.(c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution. (Section 1 as Amended November 3, 1998).

    Section 2. If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately. (Section 2 as Amended November 8, 1966).

  4. Tiny Brains + Holy Books. That sure seems to be the make up of Pences “think tank”. More like a fish tank. It seems to me that “THEY” dont get to vote on “MY” rights.

  5. People have rights, including the right to religious beliefs. But those beliefs do NOT have rights. Mr. Pence would do well to not confuse “rights” with “beliefs.”

  6. People who are rigid and are unable to think broadly and contextually are vulnerable to the sort of traps into which Mr. Pence (among others) has fallen, in religion and politics. Unfortunately, there are a number places where religion and politics can meet, and that is one of them. There are also some healthy places where they can meet, too, but that doesn’t just fall into place without some work. In most cases, anything that is worthwhile tends to take work. Pence’s position more easily fits where people are either unwilling or unable to do the mental work which will help them understand context and complexity. It’s the easy way through difficult issues, but historically it’s a dead end road. Being rigid and authoritarian also enables that sort of sloppy thinking. Like H.L. Mencken said, “For every complex problem there is an answer that is clear, simple, and wrong.” I just wish that the lives and fortunes of so many people were not at stake. People could actually die because of his (and others’) predisposition to act.

  7. Ever wonder why most all the Stars above us at night have Arabic names? Before the repressive theocracy of Mohammad took control the Middle East was a place of astronomy, mathematics, critical thinking. At the same time the Christians in Europe were busy burning people at the stake for being Witches and torturing and repressing people like Galileo.

    Theocracies are repressive dictatorships. Eliminating freedom and forced payment to Churches as a tax which a select few profit, and why Separation of Church and State is so important. One has to look no further than the Catholic Church and their association with Adolph Hitler to see the true morals of organized religion…Cash!
    Any politician forcing their religious belief on the rest of us is a traitor to this country and should be considered as dangerous a Adolph Hitler.
    In WW I, Hitler’s whole platoon was wiped out, except for him. From that point on he believed he was chosen by the Christian God to go on to do great things…like murder anyone that was not of his race and a Nazi.

    How long until we have to pay taxes to every church in our neighborhood? How long until one will be executed for NOT being a republican?

  8. You are spot on target Sheila. The fundamental rights of a minority should never be subjected to the whims of the majority.

    Considering our Christian Crusader governor and the republican super majority in both chambers of the Indiana legislature, I fully expect HJR6 to be on our ballots next fall. I will work, hope and pray the citizens of this state rightly reject such blatant discrimination.

    Regardless, given Justice Kennedy’s well written majority opinion in the Windsor v Holder case, all such state bans will eventually be ruled unconstitutional as a violation of the equal protection clauses.

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