It is the essence of democracy that people should be able to decide the moral rules that govern the nature of a community. If people don't have that power, then they are living under an autocracy.
True, this majority rule is not unlimited. It is limited by what the government has the power to do. Consequently the majority cannot, in general, vote to seize the homes and accumulated savings of rich people. Leaving aside exceptional cases, government cannot mandate how parents how should raise their children. These kinds of power lie outside the scope of government in a free society.
Majority rule is also circumscribed by individual rights. But these are the rights clearly specified in the Constitution. A majority of citizens cannot prevent an individual from voting because voting is a basic right, as is the right to freedom of speech and freedom of religion, and so on. The state is constitutionally prohibited from undermining these enumerated rights.
Now the high court of California has made gay marriage into a right that is immune from restriction by the majority of citizens in the state. We already know what California citizens think about gay marriage: they oppose it. A referendum outlawing gay marriage was passed with the support of the state's voters.
How, then, can a court invalidate the referendum and over-rule the will of the people? Basically through a kind of legal fraud. The court has to pretend that there is a right to gay marriage even though it is nowhere evident in the state constitution. Read the constitution, hold it up to the light, squeeze lemon juice on it--you won't see a right to gay marriage in there. It is simply not an enumerated right, nor is it a right that can be clearly derived from other enumerated rights.
Here we see liberal jurisprudence in its arrogant willingness to subvert the will of the people in order to achieve its ideological agenda. This has nothing to do with whether you think gays should be allowed to marry. If you think they should, go ahead and vote for candidates who support gay marriage. But you should still oppose the manufacture of bogus rights in order to reach a result that democracy would not by itself allow.
Attempting to insulate themselves from the political fallout, Hillary Clinton and Barack Obama have both said they oppose gay marriage. The real question, however, is what they would do to express this opposition. What would a President Obama do, for instance, to protect traditional marriage? Here the answer appears to be: nothing!
In the past Democrats have always appreciated courts doing their dirty work when it comes to issues like abortion, pornography, prostitution and gay rights. This way Democrats can advance their permissive agenda without having to take political responsibility for voting against the values of a majority of voters.
I know that there are gays who desperately want gay marriage, and in a way I'm happy for them. But at the same time I'm sad for constitutional democracy, which suffered a grievous blow at the hands of the California high court.
Reader Comments ( Page 5 of 86)
61. To Mokele: nature says that sexual partners are obligated to procreate, that's who. That's what sex does--it's procreates new human beings. Since 99.9 percent of sexually active partners reproduce, and since the children of that reproduction have the right to life-long nurture and education by the people who produced them, contracts *HAD* to be formed by the adult partners for life. We call that unique partnership "marriage." Gays are infertile. Don't make me send you back to Biology 101.
Also, children are sacred, and the right they have to be nurtured and educated into adulthood creates a sacred necessity demanding a life-long contract be formed among the adult partners who created the little ones.
To goddess1: the reason for opposing "gay marriage" is that "marriage" is a life-long contract arising from the creation of children/families, and gays cannot produce children/families. It has nothing to do with religion and everything to do with the procreation and education of a state's citizenry. The male-female couple is the machine that produces the state, and the state simply recognizes this by issuing contracts concerning it.
preteristvision at 11:37AM on May 16th 2008
62. Has everybody noticed that Massachusetts & California not only are the only states to have legalized same-sex marriage but were the epicenters for the sex-abuse scandal in the Catholic Church.
This totally is a smack in the face in some ways for all the anti-Catholics who bashed the Church during that period. You don't need evidence or research to prove it like they were saying, it is just right there.
it was a homosexual scandal all along because the priests who did it were homos as well as the post-pubescent boys or so-called "survivors"
By the way, survivor is a erroneous term. These people were victims. Most people who were sexually abused never get killed. If they do, it is suicidal.
Lou at 11:38AM on May 16th 2008
63. No, Dinesh, the court did not make gay marriage a right, it followed the 14th amendment, which says that there will be equal protection under law and due process of law. That means that it's legal for black and white people to marry, even in the old south, and it should be legal for gay people to marry, too. Matter of fact, it should be legal for polygamy and polyandry to exist for those of majority age as well. The Constitution of the United States is what governs the land, not your crackpot and intellcctually dishonest interpretations of the Bible. And you never did answer the long standing question, "why do they pay you?"
@#$%^&!! at 11:39AM on May 16th 2008
64. So preteristvision would ban marriage for post-fertile adults? Or for adults who knew they did not want children?
Your view is simplistic and disingenuous. Marriage is far more complex than a simple biological imperative, especially in modern times. The mores of a society are NOT written in stone, they are dynamic and change with time.
Sorry, bible thumpers, that is just the way it is. What is true 100 years ago may not be true today. We do NOT exist in the vacuum world of your bible.
Linda at 11:40AM on May 16th 2008
65. California has not only been sodomized but "fecalized".
Jed at 11:41AM on May 16th 2008
66. DINESH D'SOUZA is a STRAIGHT SUPREMIST
DOWN WITH STRAIGHT SUPREMIST USING RELIGION
TO KEEP FELLOW ADULT CITIZENS in a SECOND CLASS POSITION.
In the news ...
The California opinion closely resembles the U.S. Supreme Court decision that has stood the test of time: Loving v. Virginia. In that 1967 ruling, the court struck down all remaining state bans on interracial marriage under the federal constitution. Like Thursday's decision in California, Loving made the same dual move of invalidating legislation, based on strict scrutiny, on grounds of both liberty and equality. This move is unusual—indeed, I know of no case other than Loving and Thursday's case that has made it.
On the 40th anniversary of her victory, African-American plaintiff Mildred Loving last year issued a statement urging that gays be allowed to marry. Her support must have been welcome to the same-sex couples who had been patiently waiting for the chance to do so.
RJP3 at 11:41AM on May 16th 2008
67. "nature says that sexual partners are obligated to procreate, that's who. That's what sex does--it's procreates new human beings. Since 99.9 percent of sexually active partners reproduce, and since the children of that reproduction have the right to life-long nurture and education by the people who produced them, contracts *HAD* to be formed by the adult partners for life"
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Ugh. Listen to yourself. You are deciding what motivates people to get married. And your 99.9% statistic is a JOKE. If you even have a reference, it would be from "Focus on the Family", or some such fascist organization.
It's safe to assume that you would ban single women becoming pregnant by sperm donor?
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Strangely absent is any neocon claiming that McCain stands with them. That's because he doesn't. He says that he believes that it is a state's right issue, that his opinion is irrelevent.
By the way, this is why "Focus on the Family" is pissed off at him.
Linda at 11:48AM on May 16th 2008
68. Also, preteristvision, there are literally hundreds of instances of homosexuality in the animal kingdom, from Bonobos rubbing each others' genitals to 2 male penguins adopting an egg and raising the hatchling. Just google "homosexuality in animals" and you'll see.
That crushes your "nature" rationale for marriage, doesn't it? AS was stated by another this morning, homosexuality has been around for THOUSANDS AND THOUSANDS of years, the taboo is finally lifting for these folks, and they are able to stand in the sun at last.
Linda at 11:54AM on May 16th 2008
69. why is it that the folks who're against gay marriage uaually have fantastical smutty minds?
You get the impression that they read "dirty" magazines. It's like Donald Wildmon's "study" on porn back in the, what? 80's? Wallow in the mire you Christian moralists! Marriage is not yours to control!
abbot at 11:59AM on May 16th 2008
70. DD:
As usual, you really missed it in this Blog. It has been said that democracy in its pure form is "three wolves and a lamb deciding what to have for dinner". The Bill of Rights of the US is desiged to protect the minority from the tyranny of the majority, as it has been put.
You say that the court in California was "thwarting the will of the people" who through legislation had gotten gay marraige outlawed/mariginalized. Well, DD he's the catch...one function of the judiciary is to determine if laws passed by legislators are constitution or not. It's part of the balance of powers, meathead! In the California case, apparently the court found in opposition to the legislators. It happens! Get over it! If the people of California don't like that, they can take the case to higher courts, including the Supreme Court, for further testing.
In the meantime, you should quite with your twisted view of the democratic process and let events take their lawful course.
You seem to like to cherry pick the cases in which there has been undue "judicial activism" in your view. Like cases involving teaching of bullshit creation myths in public schools. Just because a bunch of local rednecks pass a law saying you can teach creation, doesn't mean that it's thwarting the will of the people when a sensible court throws it out.
DD....have you ever taken a civics course, or do you just like to make this crap up as you go along?
John Galt
John Galt at 12:02PM on May 16th 2008
71. "Since 99.9 percent of sexually active partners reproduce."
Go back to "Source Citation 101". Smoke is coming out of your pants.
Nice try trying to use natural selection arguments to summarize marriage into a procreative imperative contract. I guess you've either never been married, nor found anyone who wanted to marry you.
Mokele Mbembe at 12:18PM on May 16th 2008
72. This is from Ada's blog:
preteristvision: (on the same reproductive imperative)
"the state has an interest in protecting the orgasms that create the citizenry of which it is comprised."
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LMAO AND ROFL...........................................
This poster must be a male, or a frigid female
because
only the male needs to orgasm for procreation (for the most part)
Really funny stuff.
Aren't all orgasms sacred?? I know Godless Heathen Brian would say so........
Linda at 12:32PM on May 16th 2008
73. Dinesh says: "Majority rule is also circumscribed by individual rights. But these are the rights clearly specified in the Constitution. A majority of citizens cannot prevent an individual from voting because voting is a basic right, as is the right to freedom of speech and freedom of religion, and so on."
Which is true.
Then he says "The court has to pretend that there is a right to gay marriage even though it is nowhere evident in the state constitution. Read the constitution, hold it up to the light, squeeze lemon juice on it--you won't see a right to gay marriage in there."
Which is false. If he had read the ruling, then he would see that the court rejected the idea that there is a fundamental right to gay marriage. What it did determine, however, is that the fundamental right to *marriage* is mandated by the equal protection clause of the constitution to be enjoyed by all, regardless of one's sexual orientation.
The only thing new in this ruling is the recognition of sexual orientation as a suspect class in California. To be a suspect class (a class of citizen which carries stronger anti-discrimination protections), a class must meet three criteria, more or less. Those are listed in the court ruling. "The defining characteristic must (1) be based upon an ‘immutable trait’; (2) ‘bear no relation to a person’s ability to perform or contribute to society’; and (3) be associated with a ‘stigma of inferiority and second class citizenship,’ manifested by the group’s history of legal and social disabilities."
The court saw that numbers 2 and 3 were easily apparent, and ruled that while it is difficult to determine whether 1 holds true or not, it can be said to apply to the extent necessary because of the generally accepted innateness of one's sexual orientation that would either be impossible to change or be "changeable only at unacceptable personal costs". Furthermore, religion is not at all innate, but still qualifies as a suspect class. (And one's sex can be changed, but still enjoys the higher degree of protection.)
Having determined that sexual orientation is a suspect class, the state is required to satisfy the strict scrutiny of the court in order to justify discrimination. It can't do that, mostly because of the fact that guaranteeing equal protection under the law (that is, allowing same-sex couples to share in marriage) has absolutely no negative effect on the rights and responsibilities enjoyed by opposite-sex marriages.
Dinesh would appear a lot smarter if he ever bothered to read the judges' rulings.
keepitreal at 1:06PM on May 16th 2008
74. To Linda, what would post-fertile adults with no children need a life-long contract punishable by law for? And, what would adults who do not reproduce have a need for a life-long contract punishable by law for? I greatly look forward to your answer. Oh hell, I'll answer it: they don't. The necessity of a life-long partnership between sexual partners emerges from the life-long needs of the children produced by that sexual relationship. Marriage and family are the same thing, as marriage is rooted entirely in sexual biology and always has been.
The state does not have any interest in contractualizing mere affection, attraction, or love under penalty of law. Sorry, but that's the reality, and it has nothing at all to do with religion. Rather, it has to do with the well being of children and the creation and education of a citizenry.
Next,, the rubbing of genitals is not the basis of the "marriage" contract. The reproduction of children is the basis of marriage contract, as children have the right to long-term nurture and education from the people who created them. Likewise, the adults who formed the children have a legal duty to the children they created.
Finally, gays rubbing their gentiles need a life-long legal contract as much as the person who stimulates her own gentiles. Neither case produces any long term *necessity* for a contract to be drawn up. Sorry, but it's absolutely true.
Hey Mokele, I ask you again: what basis does any state have for creating an imperative life-long contract concerning friendship and attraction? The entire concept of a life-long adult partnership compelled by law is linked to the legal and biological necessity of raising kids to adulthood.
preteristvision at 1:10PM on May 16th 2008
75. Aren't all orgasms sacred?? I know Godless Heathen Brian would say so........
Linda at 12:32PM on May 16th 2008
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You summoned me? I heard the magic o-word.
Hearkening and obedience, mistress.
Godless Heathen Brian at 1:13PM on May 16th 2008