Proposition 8, Part Two

I wanted to take a moment to go back to the issue of Proposition 8, which I introduced in my last post. After some further helpful discussions with Marion and Thayet, I've decided how I'm going to vote (unless, of course, an unforeseeably persuasive argument is presented between now and November). Ordinarily I don't discuss these sorts of things, but ordinarily that's because I'm afraid of being ostracized for my unfashionable (in northern California) views, not because I think it's none of anybody's business.

So let me get this out of the way: I'm going to vote no on 8. This means I will be voting not to have the word "marriage" defined as pertaining only to a man and a woman for purposes of California state law.

Why am I telling you this? For two reasons. One, because I hope that my friends who read this might find my reasoning useful if they haven't made up their own minds already. Two, because I hope that this post will help promote tolerance of conservative Christianity in anybody who reads this, friend or not.

I should be clear that I don't mean "tolerance" in the all-too-fashionable modern senses of either a) relativity or b) acceptance. I mean "tolerance" in the sense of live-and-let-live, and hopefully, in the sense of understanding. My hope is that at least one person who hates, is frustrated by, cannot comprehend, or otherwise is unable to engage with theologically conservative Christians on the issue of gay marriage as fellow constituents of The People (both of the state of California and of the United States) will read this post and come away with at least marginally less hatred and frustration, and a little more comprehension and ability to engage. Maybe even some empathy.

If this is going to work I'll need to explain a few things about myself theologically. Friends and family can skip this paragraph, but for our hypothetical new readers, a few salutary identity statements are in order. First, I'm a Christian. I have been so, in a thinking sense, for something like 15 years. I am a Pentecostal Christian (actually Charismatic, if you care to make the distinction). I am an evangelical Christian. I speak in tongues (or, for the skeptics, I believe I speak in tongues). I believe in modern-day prophecy, and I believe I have engaged in it myself. I believe that Jesus is the only route by which human beings may be saved. I believe that homosexual sex saddens the heart of God (I have a rant reserved for people of any stripe who think the Bible expresses any views whatever on homosexuality, or on being homosexual, or on homosexuals, but I'll spare you). I should also mention, in case anybody cares, that I hold a bachelor's degree in classics and a juris doctorate, both from Stanford.

If none of these facts strike you as at all incongruous with the fact that I am voting against Proposition 8 then you might as well stop reading now; this post is not for you. Otherwise, I hope you will find it edifying to know why somebody with my religious background intends to vote as I do.

Table of Contents
Arguments I Credit
1. The Political Focus of Christianity
2. Moral Priority in Christian Thought
3. What’s Loving?
Arguments I Don’t Credit, For
1. We Need to Defend the Dignity of Marriage
2. We Need to Protect the Institution of Marriage
3. Homosexual Marriage is Wrong
4. Restoring the Right of the People
Arguments I Don’t Credit, Against
1. Proposition 8 is Unfair
2. Equality
3. Marriage is a Fundamental Right
4. Gay Marriage is Coming

Arguments I Credit
1. The Political Focus of Christianity

Let's start with the positive. The telling question, for me, is this: what should the main goal of Christianity be in a democracy? As a devout Christian, I might phrase that question another way: what do I think is God's main goal for America?

There are plenty of answers a conservative Christian might have to the question of what I think God's goals are for America. Peace, within our borders and with other countries. A reduction in the total incidence of sin in the nation. An increase in the lovingness Americans have towards their fellow men. Improvement of the public morals. That all Americans choose to become Christians. But the answer to the question of what the main goal is, I think, has to be this: that Americans fall in love with Jesus and then begin to become more like him.

I submit, then, that the basic question an evangelical Christian should ask is this: which way will Proposition 8 tend to push the Californian (and perhaps the American) public? Towards falling in love with Jesus? Away from falling in love with Jesus? Neutral?

Given the highly charged nature of the amendment, I think we can do away with neutral.

If Proposition 8 passes, how will people tend to view the Californian church (and, by extension, California Christians like me)? Will they tend to see us as a people who love all human beings, regardless of identity or behavior, and seek their good? I don't think they will. I think they'll tend to see us more as paranoid bigots, and frankly just plain mean social bullies. And they will tend to see Christ the way they see us.

Now of course that isn't fair, or remotely intellectually honest. Christ is who Christ is (or again, for the skeptics, Christ isn't who Christ isn't) regardless of how people who call themselves Christians behave. But that's the way it is, and indeed we are explicitly charged with acting like Christ to the world around us, so fair or not (idiotic or not) I think that's how it should be. I think it's clear that Proposition 8 will hinder, rather than help, the people of California and America from seeing in Jesus as he really is and falling in love with him. As a result, I oppose it.
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2. Moral Priority in Christian Thought

A word deserves to be said here about the order in which I think Christians should be concerned about moral issues. Recall that I said “that Americans fall in love with Jesus and then begin to become more like him.”

I didn't say, “For people to begin to become more like Jesus and then fall in love with him.”

Because it isn't supposed to work that way. Christian morality - the principles that govern right and wrong behavior and interpersonal interaction as we see it - is not supposed to be prescriptive. That's orthopraxy, and we are not an orthopraxic religion. Antilles explained it to Violet perfectly way back when we were freshmen in Rinconada: Christian morality is supposed to be voluntary, and given not from the fear of disobedience but from the joy of doing what pleases God. This is a perfectly ordinary dynamic of human relationships, but the opposite perception is rooted so deeply in American culture that I need to make it explicit here.

It isn't that I think who you have sex with is a morally neutral issue; I don't. It also isn't that I think the moral propriety of who you have sex with is determined solely by whether or not the two of you love and are committed to one another; I don't. But who you have sex with is much less important to me than whether I am helping or hindering you from seeing Jesus as he really is and falling in love with him.

Let me deploy a bit of Christianese here. We say in Christian circles that God sees the heart. We also say that God judges the heart. Let us now stipulate, for the sake of argument, that God doesn't like homosexual sex. Would he then be pleased with a society where people want to have homosexual sex but don't because it's illegal? Of course not. Would he even care that it had been made illegal? I doubt it.

Of course, making it illegal could possibly reduce the number of people who want to do it. If we had any credible reason to believe that I might even support the amendment. But we don't - and we have lots of reason to believe precisely the opposite.
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3. What’s Loving?

You’ll notice I said that I don’t think God would care whether we made homosexual sex illegal. It’s a short jump from there to saying that I don’t think God will care if we make homosexual marriage illegal. I make that jump. If Proposition 8 passes I don’t think God will be pleased. I don’t think it will increase the numbers of people acting out of a desire to please him. If anything I think it will do the opposite, and God will find that a tragedy.

So far I’ve said I think the California public will unfairly judge Christians if Proposition 8 passes, and that I don’t think passing it will please God or cause people to please him at a greater rate than they presently do. Not exactly compelling, morally epic reasons for voting against Proposition 8.

Here’s what I think is the most compelling, morally epic question to ask. I hinted at it earlier: what’s loving?

What is the loving thing to do for our homosexual fellow-citizens?

I probably wouldn’t be asking this question if I thought that passing Proposition 8 would be pleasing to God (instead I’d be asking what was the most loving way to pass it), but I don’t. So I am asking this question, because my conviction that passing Proposition 8 will not please God gives me the wonderful freedom to do so. And in fact I think it is partly in order to give me the freedom to choose the loving thing to do that God feels as he does on the issue of Proposition 8.

As a lawyer, I can’t help but feel it’s a little bit silly to care so deeply about what name the state government puts on your paperwork (which is, as I’ve said several times already, all this proposition actually amounts to). But as a man, and a married man at that, I understand. The name does matter to the heart, and it matters even if it’s only the state government using the name. It would matter even if it were one individual using the name. Maybe it matters more than it “should.” But it matters, and that’s the important thing.

I do not support homosexual sex. I am sorry if that makes me an unfeeling ogre or a hopeless yokel in some people’s eyes. My commitment to Jesus’ will as revealed in Scripture is what it is, and my reading of Scripture is what it is. I cannot change my principles, and so far my reading of the text has not changed (although of course it could, and of course I am open to debate on the point).

What I can do consistent with my principles is vote against Proposition 8. I am sure that this seems a very poor gift to many, who wish that my principles or my reading of Scripture were different, or both. But it is the only gift that I have, and I give it freely.
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Arguments I Don't Credit, For
1. We Need to Defend the Dignity of Marriage

I'll be honest, I'm not exactly sure what this one means. The dignity of marriage? Who gets married because they want to lay hold of some dignity? I certainly didn't. I got married because I was in love with my wife, because I wanted to honor that love by strengthening it every way I knew how, and because God told me to do so.

If that's what people mean by “the dignity of marriage,” then I'm not really see how Proposition 8 is relevant at all. So maybe I'm going at the problem backwards. What will Proposition 8 weaken? Maybe if I can identify that, I'll know what people mean by “the dignity of marriage.”

As you know or should know by now, Proposition 8 is solely a question of names. It isn't a question of the rights afforded to homosexual couples; that was settled in 2003 with the Domestic Partnership Act. I also doubt very strongly that it is a question of societal acceptance. If constitutional amendments could dictate how society feels about certain groups, then the history of the civil rights movement from 1865 onward would have been radically different.

But what Proposition 8 is a question of is a question of how broadly the word “marriage” can be applied by the state of California. Which means that the thing - the only thing, in my view - that it will weaken is how exclusive is the right to have the state government call you “married.”

I italicize state government because it’s important to remember that the constitution does not, by and large, affect the behavior of non-state actors. If Proposition 8 passes, individual citizens will still be perfectly within their rights to call homosexual couples “married.” If Proposition 8 does not pass, individual citizens will still be perfectly within their rights to refuse to call homosexual couples married. Doing either of these things might be considered deeply insulting to some people, and also may create some verbal confusion. But there is nothing illegal or unconstitutional about individual citizens being deeply insulting to some people or using imprecise and improper terms to discuss legal concepts. Both of those happen all the time; the campaigns around Proposition 8 are themselves perfect examples.

Some people will object that this point is splitting hairs. Perhaps those people feel a deep desire to conform their behavior even to those areas of the constitution which do not apply to them, whether or not doing so agrees with their principles. That’s fine, and maybe even admirable, but it’s their choice to act as if they are bound by something which does not purport to bind them. Perhaps instead there are some who feel that, as a practical matter, society will over time tend to follow the constitution. That may be so, but if that movement of society’s overrides society’s principles, then shame on society for not having the moral fortitude to stick to its guns.

So it is the state government alone upon whose actions we are being called to vote restrictions up or down. Let us try to imagine the state of mind of someone who thinks that because his right to be called “married” by the state government is now less exclusive than it was his marriage has less “dignity.” What can we say of this person's state of mind? Quite a lot, I imagine, and little of it flattering. I submit that we can definitely say he is not viewing the world or his place in it as Christ sees it. And so I decline, as a Christian, to think that way.
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2. We Need to Protect the Institution of Marriage

This is a subtly different argument from the “dignity” one, but ultimately I pay it no more heed. The argument here goes that the institution of marriage has some benefit, and that Proposition 8 will somehow reduce that benefit.

What benefits does marriage have? Certainly it has personal benefits. Will Proposition 8 reduce those? I think the analysis here is the same as it is for dignity. No, it will not, because Proposition 8 does not speak to the individual.

Marriage also has societal benefits. Will Proposition 8 reduce those? I submit that it will not. If there were any sort of credible research consensus that homosexual families are less likely to produce valuable citizens than heterosexual families, then I might consider voting against Proposition 8 on that basis. But to my knowledge no such consensus exists (though there are some conflicting studies both ways). My personal expectation is that with another couple decades of data available, homosexual families will turn out to be every bit as lousy at turning out valuable citizens as heterosexual families have, but only time will tell.

In any case, Proposition 8 will not alter the existing equality between homosexual and heterosexual families as child-rearing units. Homosexual couples did not gain any child-rearing rights when In Re Marriage Cases was decided, and so Proposition 8 will not take any child-rearing rights away.

Some people argue that we need to preserve the institution of marriage because upon that rock our whole society is founded, and without it our society will flounder. What they really mean by “preserve” is restricting the class of relationships the state government calls “marriage,” which I think makes this argument look pretty silly just on its face. But because a lot of well-meaning people seem to put a lot of stock in this interpretation, let me spend some more time with it.

First off, I’d like to point out that we have enacted lots and lots of laws that could be viewed as undercutting the institution of marriage. No-fault divorce means legalized adultery – the law cares not one whit who my wife sleeps with. Don’t we think that undercuts the institution of marriage pretty strongly? The elimination of bastardy laws means marriage no longer confers the right to have legitimate children. That one looks pretty heinous from the perspective of, say, six hundred years ago. Or how about separate property states? You mean to tell me that my wife and I are one flesh but our property stays separate? Blasphemy!

And yet, somehow, society has endured.

Second, I’d like to point out that the institution of marriage is not the rock upon which our whole society is founded. As a Christian, I do not believe that marriage is what ultimately upholds and preserves the United States of America. As a Christian, I believe that Jesus Christ is what upholds and preserves the United States of America, as he does the rest of existence. He is my rock, not the laws of my state or even my country. Now of course, that’s no excuse to move my country in ways that will displease him. But as I explain throughout the rest of this post, I don’t believe that voting against Proposition 8 will displease him.

So far I have skipped what some might consider an important Christian objection to the benefits of marriage. That is because I think it deserves its own topic, and I turn to it next.
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3. Homosexual Marriage is Wrong

This is my way of phrasing the objection that homosexual marriage is simply sinful, and therefore ought to be outlawed. I don't credit this objection, but I consider it very serious, so I want to give my views of it in some detail.

To begin with, I don't think that homosexual marriage is sinful, and I don't think the Bible thinks that either. I promised to spare you my rant on this subject, so for the moment allow me to simply state in conclusory fashion that the Bible thinks homosexual sex is sinful (I will also spare you my rant on the misperceptions, unwarranted enlargements, and abuses of the word “sinful”). As I understand it, plenty of marriages involve practically no sex or very infrequent sex, and I see no reason to believe that homosexual marriages will turn out to be any different. But let us for the moment, and strictly for the sake of argument, conflate marriage and sex, as so many do. Ought we then to outlaw homosexual marriage, on the basis that it is sinful?

As a matter of positive law, we don't outlaw lots of things on the mere basis of sinfulness. We don't outlaw covetousness or adultery at all, and we outlaw only certain kinds of lying. We also don't outlaw being non-Christian or blaspheming the Holy Spirit. Some of these, of course, present practical difficulties - how exactly do you write a bill outlawing “blaspheming the Holy Spirit” or “covetousness?” But others - such as adultery - are the sorts of things that are perfectly easy to outlaw, and indeed have been outlawed in the past, and we don't outlaw them today despite what I suspect would be a national consensus that they are indeed at least usually morally wrong.

There is a sense that some Christian circles sometimes develop that we ought to reduce the total instance of sin in our land. Now, don’t get me wrong, I agree that a reduction in the total instance of sin in America would be good for the nation, as it would be good for any nation. But have we ever, as Christians, been called by God to effect that reduction on a national scale? I submit that we have not.

One thinks immediately of passages like 2 Chronicles 7:14: “if My people who are called by My name will humble themselves, and pray and seek My face, and turn from their wicked ways, then I will hear from heaven, and will forgive their sin and heal their land.” This is a promise which was spoken to Hebrews rather than Gentiles, as most American Christians are, but I would agree that it portrays something timeless about the heart of God. I would also agree that America is my land, within the meaning of the promise. But the passage does not call for me to make “my land” turn from its wicked ways. It calls on My people who are called by My name. The promise is not that God will heal America if I stop my non-Christian neighbor from being in a gay marriage. The promise is that God will heal America if I, and other Christians, will humble ourselves, pray and seek the face of God, and turn from our wicked ways.

Another way to arrive at this same conclusion would be to simply ask what sin is, and whether Proposition 8 bears on sin at all. Sin is not fundamentally an action, as I think we all know. Again, for the sake of argument, let us stipulate that gay marriage is sinful. Would a man in such a universe who wished with all his heart to be married to another man be any different from the man in Matthew 5:28 who looks at a woman wishing with all his heart to have sex with her? Of course not. The existence or absence of a legal barrier to gay marriage is immaterial to that question; the essence of sin is in the heart. The state constitution has no sway, and does not purport to have any sway, over the hearts of the residents of California.
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4. Restoring the Right of the People

This one usually starts something like “four activist judges …” and references the fact that 61.4% of Californians voted Proposition 8’s exact language into law in 2000. I’ve harped on this before, so I hope nobody reading this is so ignorant as to believe that a statute passed by initiative is immune to judicial review. The easiest counter-example is to imagine that 61.4% of Californians had voted into law in 2000 language that said, “All persons of African descent shall be chattel property in California.” Suppose a majority of the California Supreme Court struck down that law as violative of the constitution. Would it be valid to say, “But 61.4% of Californians voted for that law?”

Of course not. Constitutions take certain laws off the table no matter how many people vote for them. That’s what constitutions do; it’s what they’re for. And one of the most important jobs of a supreme court is to announce when a law has crossed the line into unconstitutionality. That’s all In Re Marriage Cases was.

Now of course, the people are allowed to disagree with the supreme court. If they do, they’re supposed to enact a constitutional amendment to clarify their position on what the constitution says or should say. That’s exactly what Proposition 8 is; it’s asking the people of California whether the state supreme court got it right, or whether they disagree with the court’s reading. We’ll find out soon enough if the people of California still feel the way they did in 2000, or if they have changed their minds. In the meantime, it’s idiotic to argue that because the people voted one way in 2000, they should vote the same way in 2008.
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Arguments I Don't Credit, Against
1. Proposition 8 is Unfair

Working in San Francisco, I hear this one a lot. “Vote no on 8; it’s unfair and wrong.” This one makes no more sense to me than the “dignity of marriage” objection on the other side. “Unfair?” By what benchmark? By the benchmark that says “marriage is for all people?” That’s begging the question.

Begging the question is hard to avoid in the debate over Proposition 8, because a lot of that debate boils down to what people think the word “marriage” means or should mean. That’s no excuse, though. If you assume that marriage is for all people then yes, Proposition 8 is unfair. But whether marriage is for all people is precisely what the people of California are being asked to decide. It does not add to the debate to simply repeat one’s conclusion that yes, marriage is for all people. That does not tell people why one thinks that. It isn’t an argument. Understandably, I find it unpersuasive.
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2. Equality

This one is also popular, because of the unspoken rule that you can’t vote against “equality” in America without being an ignorant bigot.

Of course, you can vote against equality. The principal of equality we’re supposed to hold to is treating equal things equally. We don’t object to the inability of committed 14-year olds to marry because we have some sense, as a society, that 14-year olds are different than adults. If they’re different, they have no claim to being treated equally. We would object to the inability of interracial couples to marry because we have some sense, as a society, that race is not a material difference when it comes to marriage.

Many opponents of Proposition 8 believe that homosexuality isn’t a material difference either. I happen to agree with them in many respects. But this isn’t an argument; it’s a conclusion. Again, the question is what the people of California think marriage should mean. To rephrase, the question is whether the people of California think homosexuality is a material difference. If a person is unsure, then it does no good to throw the equality slogan in that person’s face, because the equality slogan assumes that homosexuality is not a material difference. It’s begging the question.

A similar issue is the “discrimination” slogan. “It’s about discrimination and we must always say NO to that,” says Senator Feinstein. Stirring words, but plainly untrue. We discriminate between minors and adults, and nobody complains about that. Why? Because we think majority is a material difference; it justifies different treatment. Apparently Sen. Feinstein thinks homosexuality is not a material difference. That’s fine, but again, it isn’t an argument. It’s just begging the question and hoping that people won’t notice.
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3. Marriage is a Fundamental Right

This is a slightly more intellectually coherent version of “Proposition 8 is unfair.” This argument goes that marriage is a fundamental right, and so we shouldn’t take it away. Sometimes it’s phrased as “restricting the freedoms” of homosexuals, or something like that. And we in America Do Not Take Away Fundamental Rights.

This one seems to have a lot of traction among the people I hang out with, but I cannot for the life of me see what is so persuasive about it.

For one thing, we do take away fundamental rights. We take away the fundamental rights of criminals all the time. Oh, but they did something to deserve it, comes the objection. We don’t take away the fundamental rights of people just because of who they are! This is America!

Except that of course we do take away the fundamental rights of people just because of who they are. Committed fourteen year olds cannot marry, though marriage is a fundamental right. Uncommitted eighteen year olds can. An eighteen year old man has a fundamental right to marry a forty year old woman – but not if she’s his mother. Or already married. Why take away the fundamental right of the one and not the fundamental right of the other? After all, it’s a fundamental right, right? Fundamental!

Marriage may be a fundamental right, but that doesn’t tell us who the right should extend to, and who the right should extend to is the question at issue. So it does no good to prate on and on about how marriage is a fundamental right. That is true, but utterly beside the point.

Now of course it is true that, in a very literal sense and if one holds to a certain kind of legal philosophy, Proposition 8 is “taking away” the fundamental right of homosexuals to marry (i.e., have the state government use the word “marriage” in reference to them if they jump through certain hoops) in California. But it is insidious in the extreme to label invalid, on that basis alone, the efforts of those trying to do so.

That is, from a legal realist’s standpoint. If we stick to the way the law views itself, then Proposition 8 isn’t taking away anything at all. It’s simply correcting the state supreme court’s reading, pointing out that “in fact” homosexuals have never had a fundamental right to marry in California. As a matter of legal fiction, the right to marry guaranteed by the California constitution has always applied to homosexuals. That’s an important legal fiction and too few people give it the weight it deserves.

But if we put our realists’ hats on, we can recognize that the California right to marry had not been interpreted as applying to homosexuals until 2008. We can further recognize that, in reality, four human beings read the state constitution and said, in effect, “Wow, I never noticed this, but this right applies to homosexuals! Who knew?!” From a certain point of view, those four human beings “conferred” a right upon homosexuals by reading the constitution in that way.

If Proposition 8 passes – if the people of California in effect say to our supreme court, “No, that is not the way we want our constitution to be read” – then, from that same certain point of view, the people of California will have “taken away” a right from homosexuals. I recognize that. I get that.

But here’s the thing. The people of California must be allowed to do so. Otherwise the final say as to what the constitution means lies not with the people of California, but with the state supreme court. That strikes at the very heart of what a constitution is supposed to be: the supreme expression of the will of the people. It is precisely because the constitution is the supreme expression of the will of the people that the supreme court invalidated a law passed by popular vote to begin with. You cannot have it both ways. If the constitution is the supreme expression of the will of the people, then In Re Marriage Cases was validly decided, and the people of California must be allowed to “take away” the fundamental right of marriage. And if the constitution is not the supreme expression of the will of the people, then by the same fundamental principles that justified the Revolution the people are not bound by it, and marriage is not a fundamental right at all.
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4. Gay Marriage is Coming

This is my category for the class of arguments that say, in one form or another, “Gay marriage is coming whether you like it or not, and we should help social change along with the constitution.” I want to distinguish it from the class of arguments that say, “Gay marriage is coming whether you like it or not, and we should keep the constitution in line with social change.”

The latter I think is a perfectly reasonable statement, though it doesn’t tell one how to vote on Proposition 8. The former, though – the idea that we should use the state constitution as an instrument to promote social change – is deeply distasteful to me.

As I’ve said elsewhere in this post, Proposition 8 applies only to the behavior of the state government. Nevertheless it is natural for many people on both sides of the debate to view it as a proxy for social change. Boiled down to its essentials I think the hope is this: that guaranteeing the right of homosexual couples to be called “married” by the state government of California will strike a blow for the ultimate cause of homosexuals not being seen as abnormal by private individuals.

And the truth is that maybe it will. People are weird like that. But I don’t think it should, and I think it evinces a deep disrespect for the rule of law to alter the state constitution in the hopes that it will change the beliefs of private individuals. That’s not how I want my constitutional law to be made.

One might object that, on this philosophy, I ought to object to the 13th, 14th, and 15th amendments. That is not so. I would encourage somebody to vote for those amendments if they were of the personal conviction that slavery ought to be abolished in America, that the rights of the federal constitution should be imposed upon the state constitutions, that the franchise should be extended irrespective of race, etc. But I would have objected to somebody voting for those amendments because they hoped by doing so to force people to change their minds.

That is not to say I think people should not try to change their fellow citizens’ minds. It is to say I think they should have the courage to do so through debate and example rather than the coercion of the laws. It is not to say I think that no law should be voted for which may compel a person to act contrary to his personal beliefs. It is to say I think no law should be voted for because it will compel a person to act contrary to his personal beliefs, in the hopes that eventually he will give his beliefs up.
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