In the United States, our founding fathers–a group of deists–believed that our human rights were unalienable and given to each of us by our Creator. That is, there are certain things, such as life, liberty, and the pursuit of happiness, that cannot be bestowed by–and should not be restricted by–the government. Of course, we do have laws, and there is a democratic process for changing even the very Constitution of our country, but I think that it’s important to realize that a plurality is not sufficient for defining our rights anymore that it is sufficient for defining moral principles. Just because 63 percent of people voted in favor of legalizing murder, murder would remain a heinous act. To believe otherwise, is to espouse a position of moral relativism, where what is good or bad, right or wrong, changes as society changes. Now, I am not saying that this doesn’t happen–I’m just saying that when it happens it is we as a people who are misleading ourselves. The wrong remains wrong, no matter how accepting of it we may become as a society.
Why do I raise this issue? Because we are seeing a variety of human rights issues decided by referendums–popular votes to approve or disapprove of something that is at heart a moral issue. For example, Californians voted to pass Proposition 8, which would ban gay marriage, and a federal court has ruled that that ban is unconstitutional–a ruling which may find its way all the way to the Supreme Court of the United States. Whether one believes it should be legal or illegal, gay marriage is a moral issue. There is an answer to the question, but it isn’t to be found by the outcome of a popularity contest. If that were the case, you might well envision that the people of California first ban gay marriage, then years later legalize it, then many years later ban it again. Clearly, the basis for the decision should not come from public opinion. The ruling of an impartial court (assuming such exists) is a step in the right direction, but even it is imperfect. Morals simply are. Our attempts to identify and define them only serve to help us function as a society–they do not create the morals themselves.
Similarly, the states have taken issue with the health care reform law. For the most part, that has taken the form of states’ attorneys general filing lawsuits that allege that the law is unconstitutional–usually because of the individual mandate. However, some states have actually taken to the voting booth and allowed their citizens to express their support or opposition to the law. The results in Missouri–where roughly 70 percent of voters indicated that people should be able to opt-out of the mandate–are being scrutinized and used as evidence that the people don’t like this health reform and don’t believe in the individual mandate. As Maggie Mahar and Kate Pickert point out, however, that “evidence” doesn’t tell us anything new. It simply indicates that Republicans dislike the reform, while Democrats like it, and many more Republicans turned out to vote.
Moreover, the results of such state referendums are really quite pointless, because federal law trumps state law. If the federal law is upheld to be constitutional, it will supersede any state law that conflicts with it. If the federal law is found to be unconstitutional, it will be struck down by the court, and the state law won’t matter anyway. So these referendums are nothing but symbolic efforts, without teeth. They are popularity contests at best. As with Prop 8, we are dealing with a moral issue, which will most likely be decided by the courts.