Think Freely Media presents Common Sense with Paul Jacob

Rights and Democracy

Democracy and constitutional rights fit together better than some people think.

Most people don’t think of democracy as some hyper-pure system where two wolves and a lamb decide whom to eat for dinner. They envision a constitutional republic that protects fundamental rights while also democratically controlling government’s legitimate decisions and policies.

Increasingly, our representative bodies — from city councils to Congress — have attacked both our rights and our votes.

We need a direct democratic check on government; we need voter initiative and referendum.

Yet, even when citizens vote directly on an issue, the courts remain there to provide an additional check. Recently, Federal Judge Vaughn Walker struck down California’s Prop 8, a state constitutional amendment banning gay marriage. He said the measure violates the 14th Amendment’s requirement of “equal protection of the laws.”

Controversial? Yes. Sensible? Also yes.

Not so sensible, though, have been some criticisms.

My friend Joe Mathews, no initiative enthusiast he, wrote in the Washington Post: “Perhaps the spectacle of a federal judge overruling such a momentous electoral result will force Californians to reckon with the fact that their initiative process is at odds with norms of American civil rights and government.”

But this is about rights, not procedures. The vast majority of states have bans just like California’s. Banning same-sex marriage has been popular with both legislatures and voters.

Politicians can be wrong. Voters can be wrong. Judges can be wrong. But with each checking the others, we will be better off.

This is Common Sense. I’m Paul Jacob.

By: Redactor


  1. Ray W Culter says:

    Judge Walker is correct—the queers have the same right to marry as do heterosexuals—-the right to a heterosexual marriage.

  2. Paul Veazey says:

    There is nothing “sensible” about Judge Walker’s ruling, which holds California’s Proposition 8 in viloation of both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Obviously, California voters employed the due, legally prescribed process for passing the law and in no way are homosexuals denied equal protection of California’s laws by the provision. the question here is supposed to be not whether the law is wise or even fair, but whether it violates some requirement of the federal Constitution. It clearly does not and an honest and wise judge would so have ruled in about a paragraph dismissing this case before trial.

  3. Rollin Lofdahl says:

    Ray W Cutler brings up the same point I have always made when this issue is discussed. A gay man has the same right to marry a woman as I do. A gay woman has the same right to marry a man as any heterosexual woman. They already have the same rights, but they want to distort the issue and claim an unnatural right for a relationship that is sterile and has no possibility of creating a future legacy. The writers of the 14th Amendment would be horrified to see how their intentions and purpose have been so grossly distorted to apply to whatever advocacy group or agenda-driven judge may desire. The gay marriage issue is for the states whenever talk of a federal Amendment is proposed, but it’s a federal issue as soon as the people of a state express their desire to ban it. Its advocates seem to have it both ways, and they have the judicial power (so far) to play both ends against the middle. And there is something “sensible” in this?

  4. Drik says:

    A society that does not protect the sanctity of the family will survive just about as long as the democracy that John Adams warned us about. “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There was never a democracy yet that did not commit suicide.”
    How soon before the government’s usurpation of the financial role of the father leaves the damaged offspring with no desire to take on a father or provider role and no more middle class to tax?

  5. twv says:

    Drik, I agree. And we have that now, courtesy of the welfare state. This has nothing to do with the rights and obligations involved in a marriage contract, whether gay or straight.

    Mr. Lofdahl, Many writers of the 14th Amendment would be horrified, no doubt, by the extrapolation of gay marrage from equal protection and the right to contract to marry. But then, many of our founders loved slavery while speaking of liberty. Progress happens.

    This business about the “right to marry” having only a heterosexual aspect is understandable, to people who are heterosexuals. It seems odd to me. And yet my gay friends have every right to freedom of contract. Marriage is a contract. Therefore…

    If you say, in counter argument, that “marriage is a sacrament,” the response is: ONLY IN CHURCH. To the state, to the instrumentality of the law, it is a contract.

    Can same-sex couples contract for marriage? They do so without benefit of license, now. That’s what “living in sin” is, and many of the obligations and rights of marriage are now enforced (rightly) without a license. The license adds a few more benefits and obligations.

    Still, I think licensing of marriages should probably be abolished. It’s a fairly new invention, designed, I’ve been told, to prohibit miscegenation, a common fear around the time of the 14th Amendment, the state suppression of which the 14th Amendment now prohibits. Rightly.

    Indeed, the hysterical anti-miscegenation rhetoric of the old days is echoed, today, in character and carelessness, in the rhetoric employed by Mr. Culter and Mr. Lofdahl.

  6. John Ken says:

    It seems to me that many here have lost the whole concept of allowing people whom they love and want to be with of being married.

    I’m a senior hetrosexual male married to the love of my life. We married knowing that at our age, we wouldn’t be able to have children. Is that wrong?

    If my beautiful lesbian daughter wants to marry her girl friend, I’ll not step in her way.

    Let’s have equality for all and not just the few biggots that post here.

    Just get over it. Progress is being made. This is supposed be that land of American equality.

  7. theRadical says:

    tmv is dead on. Marriage is – in all legal senses – a contract, and the state has no right to discriminate amongst who can and cannot enter into certain types of contracts with one another. This whole business about homosexuals having he same right to a heterosexual marriage as anyone else begs the question, and smacks of being asinine.

    Just because ‘marriage’ has a religious meaning does not change it’s legal nature, and does not give the state license to pick and choose what types of relationships the free individuals from which it derives its power may enter into.

    The real question is, with our nation going broke, bleeding jobs, and losing at least one war, why are we worried about this?

  8. S Rubicon says:

    While equal protection is always an issue, its extension into same sex marriage may be a stretch. Especially since Californians voted to oppose same sex marriages. Overturning the will of the voters only causes voters to believe their government & courts no longer represent, the people, but special interest groups. Add to this the very real fact that the judge is an open homosexual who has previously supported same sex marriage. That conflict of interests may have clouded his position & ruling. He should have recused himself so that another could have heard this case.
    If the people vote to end illegal alien birthright citizenship, should a judge overturn that vote? After all, the 14th amendment was never intended for this purpose & even the author stated so at the time. Justice Brennan, in a 1982 Supreme Court ruling on another issue, slipped this opinion into the final opinion product & birthright has been accepted as law since then. It is NOT law, but a legal precedent. No developed nation, including undeveloped Mexico, allows birthright citizenship. Some reject citizenship unless one or both parents are citizens.
    Judges need to understand that the people make the laws & at times, the people get to say what’s legal & what is not.

  9. ForFreedom says:

    Very good article Mr. Jacob. I agree with you completely. You recognize the potential problems of democracy (I like the two wolves and a sheep issue – it’s the problem with democracy), and why we’ve a limited government.

    Please keep up the good work, and thanks.

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