Proposition 8 and The Harm Principle


Election Day 2008 was defined by many landmark and surprising decisions by the American people. However, my excitement and pride in being part of the democratic process was somewhat undermined when I learned that California voters’ decided to pass Proposition 8, a state ballot proposition that amended the state Constitution to restrict the definition of marriage to a union between a man and a woman. John Stuart Mill’s arguments concerning personal autonomy and the role of government, as outlined in his seminal work On Liberty, were not far from my mind as I contemplated how this disturbing decision could have come about in a nation that seemed ready to embrace change and progress.

Nineteenth century political philosopher John Stuart Mill believed that there must be a “limit to the legitimate interference of collective opinion with individual independence” in order to prevent societal or governmental tyranny from causing people to deviate from their ordinary course of behavior or taste (Mill, 5). For him, this limit is what has come to be known as “the liberty or harm principle.” This principle states that government interference in individual affairs is only permitted when, as a result of an individual’s action, harm is done to others. Mill argues one “cannot be rightfully compelled to do or forbear because it will be better for him to do so,” even if “in the opinion of others, to do so would be wise or even right” (9). To Mill, a person’s right to pursue his preferred lifestyle despite possible moral or physical consequences is inviolable, as long as those consequences reflect solely on the individual.

The opinion of the Supreme Court Justices in the case allowing gay marriage follows exactly the sort of principle discussed by Mill. (note: expand on the context of this Supreme Court case i.e. the date) The majority opinion states, “the core set …of legal rights and attributes traditionally associated with marriage are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or the electorate” (6). They argued that, as with a person’s race or gender, “an individual’s capacity to establish a loving and long-term committed relationship…does not depend upon the individual’s sexual orientation” (7). Furthermore, and more importantly, they do not view sexual orientation as a “legitimate basis upon which to deny or withhold legal rights” (7). These justices saw fit to respect individual choice in matters that concern personal rights.

In an attempt to overturn this precedent, the language in Proposition 8 marks a setback for individual rights.  The Proposition is  a sinister anachronism, reminiscent of other epochs in American history when interracial unions were illegal and homosexuality was viewed as a perverse mental illness. Allowing heterosexual couples the right to marry whomever they please, even if their choice strikes others as potentially damaging to them or morally reprehensible, is widely accepted, and rightly so. Depriving fellow citizens the right to make the decision to marry is an egregious violation of personal rights. The moral qualms or outrage some may feel when faced with the idea of same-sex spouses, in my opinion, does not constitute the sort of harm that would warrant government interference. Of course, one has the right to hold positions in favor of traditional marriage structures, and even publicize these opinions, but never should something that is solely a matter of personal choice or preference be governed by majority views; fundamental rights should be secure against fleeting popular opinion.

One could argue the most powerful part of Mill’s Harm Principle is when he states, “over himself, over his own body and mind, the individual is sovereign” (5). Unfortunately, on November 4, 2008, California voters did not vote with this sentiment. In the very least, one consolation of this disappointing decision is that Proposition 8’s passage has created a surge of debate about individual rights and the appropriateness of government interference. As Mill argued, all opinions have a right to be heard, and open discussion is the only forum for obtaining “the clearer perception and livelier impression of truth produced by its collision with error” (16). Hopefully, debates about this decision will usher in a more enlightened understanding of the domain of government and public opinion in matters of personal choice.

Works Cited

In re Marriage Cases. S147999. U.S: Supreme Court of California. 15 May 2008

J.S Mill. Ed. Elizabeth Rapaport. On Liberty. Indianapolis 1978.

Molly Shipman (’10) is a Psychology and Writing Seminars major at Johns Hopkins University.


Note: Homepage thumbnail taken from cheechwood’s deviantART.

One thought on “Proposition 8 and The Harm Principle

  1. I don’t believe that marriage is an appropriate place to apply the Harm Principle. Marriage is, by definition, government intervention. It is the creation of a state recognized entity that did not previously exist, and does not objectively exist. Marriage is, in this regard, similar to incorporation laws. Obviously the state has the right to set the standards by wish it will issue a structure like a corporation, and I believe that it similarly has the right to determine the standards under which it will recognize a marriage.

    Rights do come into this debate, though… but not with marriage. Marriage is not a right, the ability to determine who has legal authority over you when you’re hospitalized, or who inherits your wealth when you die, etc. should be recognized as rights. Most of “rights” aspects that are incorporated into the marriage structure are available outside of marriage, already. Still, the legal hoop jumping to get all of these things is kind of a harangue. I think people’s exercise of these rights should be made easier. This isn’t only for the benefit of homosexual couples, but also for people who may wish to give these authorities over to a brother, sister, a best friend, or some other “platonic life partner.”

    The states might decide, however, that a straight, sexual relationship deserves its own classification, and it is within the bounds of the states to make such determinations regarding institutions of the states like marriage.

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