Idaho's Weekly Journal of Local & National Commentary Week 2815


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by Free Market Duck

Idaho anti-gay marriage amendment unconstitutional
(Sep 27, 2006)

Boise, ID Ė The anti-gay marriage amendment, HJR2, on the ballot for this November is as unconstitutional as an amendment to, say, shoot all the Chinese or Jews in Idaho.  Constitutional amendments cannot legally override the basis for existing amendments, such as freedom of speech or freedom of association, since these freedoms are obtained not from the Idaho or U.S. Constitutions but rather a priori (beforehand) to the existence of both constitutions.  These inalienable rights from either "God" or from the fact of the individual's existence are part of "Natural Rights" philosophy.  In fact, Natural Rights philosophy is what allows free people to then create a constitution to protect their innate rights.

   In other words, constitutional amendments do not grant rights; constitutional amendments prohibit infringements upon already existing (at birth) individual rights.  All marriage rights (gay and otherwise) are derived from civil union rights, which in turn are derived from freedom of association rights, which are derived from basic Natural Rights and not from the government.  By definition, Natural Rights are inherent rights.

   Anti-gay marriage activists erroneously argue their case on the content of the freedom rather than on the freedom itself.  In freedom of speech, this would be the equivalent of arguing for or against the content of other peopleís speeches rather than on the freedom (of speech) itself.  In freedom of religion, it would be equivalent to arguing for or against a specific religion or religious sect such as Baptist or Catholicism rather than on the freedom (of religion) itself.  Thus, the anti-gay marriage activists argue for their restricted content of marriage, one-man one-woman, as the ONLY allowable choice within freedom of association and civil unions.  If the anti-gay marriage activists are consistent, they would argue for one type of speech in freedom of speech, one sect of religion for freedom of religion, and their favorite commodities for freedom of trade.  (Notice that this is exactly what the current faith-based GOP administration has been doing with all of our freedoms lately.)

   But, as this reductio ad absurdum makes perfectly clear, embedding oneís specific content as the only legal choice in any freedom whether itís freedom of association, freedom of speech, freedom of religion, or freedom of trade, is not freedom at all.  Freedom means the right to choose your own content within the framework of choice, not somebody elseís choice rammed down your throat by the government.  Freedoms require a framework of choice, not restricted contents.  You may not agree with somebodyís choice of sexual partners, or their Nazi speech, or their worship of hippopotamuses at midnight, or their trading of gold for hula-hoops across the Atlantic, but thatís what freedom is all about:  choice and therefore tolerance of othersí non-infringing choices.

   Therefore, amendments that infringe upon basic individual rights -- such as the current anti-gay marriage amendment which also bans civil unions in Idaho -- cannot legally be voted-in by a democratic majority rule.  Both the Idaho and U.S. Constitutions are not "granting" documents; they are "prohibiting" documents.  And they prohibit infringements upon the a priori rights of the smallest minority possible: the individual.

   When you go to the polls on November 7 in Idaho, you should vote NO on the anti-gay marriage amendment because it is an assault on the concept of your pre-constitutional right to choose your content within the framework of all of our Natural Rights freedoms: freedom of association which includes marriage and civil unions, freedom of speech, freedom of religion, freedom of trade, and all the other freedoms that we obtain at birth, regardless of political geography, ethnicity or gender. -- FM Duck  

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