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James V. Lacy

Of Minarette and Moroni

Do people have a constitutionally protected right to dislike someone?  "Associational rights" spring from the First Amendment of the U.S. Constitution, and the U.S. Supreme Court says this right includes both the right to associate with others, and the right to not associate with others.

     The debate in the current Federal trial in San Francisco on the constitutionality of Proposition 8, the initiative that bans same-sex marriage in California, has gone well beyond resolving the question of whether gays and lesbians have a straightforward "right" to marry.  The case has included allegations by the homosexual plaintiffs that the ballot proposition passed by majority vote, was stimulated by an "animus," or dislike for gay people, and therefore constituted an illegal conspiracy against them, rendering the Proposition null and void.  The plaintiffs have sought to "discover" private internal memos and emails of Prop. 8’s political consultants, hoping to find disparaging remarks against homosexuals, to help prove their contention.

     In the meantime, supporters of Proposition 8 have argued that donors to their cause, who have been disclosed to the public under campaign finances rules, have been subject to harassment and intimidation for their association with the initiative, and have offered evidence of such.  The evidence of harassment is offered to help oppose live broadcasting of the case, in order to protect witness testimony; it has also engendered a revived discussion, at least among some conservative election law attorneys about whether or not privacy rights should be given a little more consideration in the analysis of the constitutionality of campaign finance disclosure laws.

     So, the legal debate on Proposition 8 has become not only an argument about religion and the state (the right to marry) but also a debate about the constitutional right to associate under the First Amendment.  

     Late last year, voters in another country that has a strong constitutional tradition and which is known as valuing rights similar to those enjoyed in the United States, went to the polls and adopted a ballot proposition which, like Proposition 8, also has some controversy about it.   Voters in Switzerland actually passed a measure banning minarettes in their country.  The campaign to ban this famous symbol of the Muslim religion and Scharia law was based very evidently on the Swiss voter’s fear and "animus" towards Muslim immigrants.   Last weekend the New York Times featured the graphics used to persuade voters to support the ban in the "Arts" section.  They include a poster depicting eight black minarettes springing out of the Swiss flag like intercontinental ballistic missiles, with a woman in a dark niqab peering ominously out from the poster.  These themes were said to have tapped into the anti-immigration feelings of many Swiss voters to pass the measure.

     I recall the extended debate on the Newport Beach City Council and Planning Commission a few years ago on just how high the tower, topped by a gilded Angel Moroni, the famous symbol of Mormonism, should be on the new Temple of the Church of Jesus Christ of Latter Day Saints.  I am not a Mormon, (though I am a BYU football fan and was quite distraught when Florida State clobbered the Cougars in Provo last year), however, I thought at the time that the city was imposing too many restrictions on the Temple.  So-called "view plane" objections just didn’t seem to make much sense to me, and a Mormon temple is a big deal for a community.  But things got worked out.

     Something similar happened in Dana Point even longer ago, when the City dumb-downed what would have been a soaring Crucifix in this hillside beach community at St. Edward Catholic Church.   There were perhaps some better "view plane" arguments to be made there, but I would have allowed the church their property rights and approved their cross.   Anybody who lives near a church ought to expect that the church will want to put a cross up somewhere.

     In the United States, we have protections for the fundamentals of religious institutions.   It doesn’t mean they get everything they want, but their fundamentals are protected, mainly their right to associate, and especially their "expressive" symbols.   Except the symbols usually can’t be too big physically, or else they will affect someone else’s rights our constitution seeks to protect.  In other countries, these protections are not so clear.   I don’t think Newport Beach or Dana Point could get away with banning a minarette in those cities.  Neither could Californians get away with doing so by statewide initiative.

     Proposition 8 does not attempt to ban gays and lesbians from associating with one another.  There are plenty of places for homosexuals to congregate in California.   Proposition 8 also does not attempt to ban a "symbol" of gayness; because marriage has been associated with religions, then the state and persons of the opposite sex for all recorded time.  Proposition 8 does not take away civil "rights" of gay associations, as contract law and civil unions can account for such matters.   What Proposition 8 does attempt to do is stop an important symbol of the male/female relationship from being hyjacked.

    Perhaps some straight people in our country don’t like gay people, or vice versa.  Perhaps these dislikes are based in religion, or upbringing, or other concepts.  So what?  Proposition 8 is not a conspiracy against homosexuals any more than the Pee-wee Herman show should be seen as a conspiracy against straight people.  After all the legal mumbo-jumbo is set aside, homosexuals and straights really do enjoy exactly the same constitutional rights in America, and thank God for that.