Dinesh D’Souza writes the following scary lines in the context of the California gay-marriage decision: “It is the essence of democracy that people should be able to decide the moral rules that govern the nature of a community. If people don’t have that power, then they are living under an autocracy.”
Taken alone, D’Souza’s statement is an endorsement of mob rule. I was therefore relieved, initially, to read his qualifications. “[M]ajority rule… is limited by what the government has the power to do” and “is also circumscribed by individual rights.” So far, that’s what I believe as well. Where we part ways is in our understanding of individual rights.
While Christians typically argue that our rights come from God, D’Souza here implies that they come from the state. D’Souza refers to “rights clearly specified in the Constitution.” He adds, “The state is constitutionally prohibited from undermining these enumerated rights.”
This presents a difficulty, because our “enumerated rights” explicitly refer to our non-enumerated ones.
If our only rights are those spelled out in government documents, then our rights are culturally relative. I hold that our rights come not from political caprice or mob rule or God, but from our nature as humans. As Ayn Rand stated it eloquently through John Galt, “The source of man’s rights is not divine law or congressional law, but the law of identity. A is A — and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work.”
D’Souza presents the following argument against gay marriage:
[J]ust like everyone else, gays do have the right to marry. They have the right to marry adult members of the opposite sex! …
[S]tates have a legitimate right to define marriage. State legislatures, drawing on tradition and appealing to the values of their constituents, have defined marriage in a very particular way. Marriage requires a) two people who are b) of legal age and c) not closely related to each other who are d) one male and one female. …
[I]f it’s discriminatory to gays to require that marriage be between a man and a woman, why isn’t it discriminatory to Mormons and Muslims to require that it remain between two people? Isn’t incestuous marriage also between “consenting adults” who have a right to equal protection of the laws? And why doesn’t the Fourteenth Amendment protect the fellow who wants to walk down the aisle with his poodle…?
The point is not that gay marriage is indistinguishable from child marriage or polygamy. The point is that any definition, and marriage is no exception, includes some people and excludes others. Consequently it’s unreasonable to say that gays have a constitutional right to over-ride the definition but other groups do not.
D’Souza essentially places the “definitions” of our individual rights in the hands of the mob. His argument, for example, also would have supported restrictions on interracial marriage. “Just like everyone else, blacks to have the right to marry. They have the right to marry adult members of the same race!” Society need merely tweak the “definition” of marriage to include “e) of the same race.” For “if it’s discriminatory to blacks to require that marriage be between people of the same race, why isn’t it discriminatory to Mormons…” and so on.
D’Souza’s view of socially defined rights meshes with his view of strictly enumerated rights. His argument is that our rights come from the state.
Yet, as Diana Hsieh and I have argued, gay marriage (between two consenting adults) is substantially similar to heterosexual marriage. Hsieh trounces D’Souza’s bogus comparisons:
1. Marriage to beasts is impossible, as the marriage relationship requires the capacity for rationality, not to mention a basic equality in rights. …
2. Marriage to children is excluded for the same basic reason: children are not yet able to fully exercise even the basic rationality required to live independently. That capacity for independence is required for the integration of lives involved in marriage. …
3. Polygamous marriage is excluded because whatever relationships would result from multiple unions would be fundamentally different than that of a two-person marriage. …
Our rights do not come from arbitrary (or traditional) social “definitions.” Our rights have an objective basis. And it is telling that Christians, who so often claim that our rights come from God, so often fall back on cultural relativism.
D’Souza makes very clear his attitude toward “enumerated rights:” they are subject to social interpretation. He writes, “In the past Democrats have always appreciated courts doing their dirty work when it comes to issues like abortion, pornography, prostitution and gay rights.”
To stick with the issue of pornography, what happened to the enumerated right of free speech? This right, according to D’Souza, depends upon social “definitions” of what constitutes pornography, definitions that are culturally relative and that derive from mob rule or arbitrary judicial opinion. (Significantly, in this case the courts have carved out exceptions to free speech.)
If the enumerated right of free speech is subject to social “definitions,” then John McCain’s campaign censorship law passes muster, because it wound through the Congress, earned the President’s signature, and passed through the Supreme Court.
If free speech may be arbitrarily “defined” to exclude pornography, using D’Souza’s reasoning, then why can’t freedom of religion be “defined” to exclude “dangerous” or even heretical religions?
D’Souza’s position collapses to mob rule, the view that “people should be able to decide the moral rules that govern the nature of a community.” While limited powers and enumerated rights may check particular reforms, ultimately those powers and rights depend on popular opinion. While generally people do ultimately create the governments under which they live, my point is that individual rights have an objective basis independent of arbitrary social “definitions.”
Oddly, D’Souza’s logic suggests that, if the majority chose to change the definition of marriage to include gay marriage, he would accept the new rules. Somehow, I doubt other Christians would be happy with that outcome.