Friday, May 8, 2009

Discrimination by the Will of the People

People should never be able to vote on the rights of others.

This has recently come to renewed importance in the wake of California's Proposition 8 banning same-sex marriage in a predominately liberal state. Marriage in the United States is a legal definition, more than a religious one, because being married in a church alone is not sufficient to be considered "married" by the federal government since you still must submit documentation proving and ratifying your marriage. Therefore, this debate which ostensibly appears to be a separation of Church and State issue is to me instead a Constitutional issue: should society as a whole be able to decide for which rights someone is eligible?

My answer is no. By opening up the discussion of a right to the voting public, the state has sanctioned a tyranny of the majority. Instead of discussing the nature of marriage in the United States in a voting body to determine WHAT it actually meant, we put the issue before voters who were asked to choose whether others would have rights based upon personal prejudices. I need to remind you that, if this were the method of solving issues relating to the struggle for Civil Rights in the African-American communities, they would have achieved equal status under the law much later, if at all, in many places. the founding fathers discussed regularly tyranny of the majority, and it was clear it was a major concern as the US began to shape itself into a new republic. By this point in time, one may have thought that we would have come to understand that issues of rights are never to be decided by the voters, as all people are guaranteed them FUNDAMENTALLY by the Constitution. California's Prop. 8 should therefore serve as a wake-up call, regardless of your opinions on the nature of what is marriage because in that very liberal state, the electoral process was used to deprive people of rights already given them by the courts, the apparent watchdogs of constitutionality.


  1. The courts have no business making law and inventing "rights". That is exactly what the California Supreme Court got into. Their decision affirming Prop. 8 shows that they've been temporarily brought to their senses. Given the nature of law and law schools in this country, I doubt that their current humility will last for long.

    The big problem for gays or any other combination of people wanting to live in an intimate relationship is that there is a huge overburden of family law that affects and limits such relationships. I, for one, wish the state would get out of the business of deciding how people relate to each other and let the whole shebang be dealt with by civil contract. It certainly wouldn’t be any messier than the ridiculous body of family law we currently have and would force people to think very hard before entering into such a relationship.

  2. In terms of courts making laws or inventing rights, sure, I believe that. I also believe however that referendums should be prohibited for issues affecting people's rights. If referendums were used to determine who got rights in the past as they are today in places like California, then our society would look a lot different. Basically, that was my point here. You cannot vote on other people's rights. In all honesty, I care a lot less about gay marriage than almost anything, but it bothers me that their rights are going to be determined by the will of the masses

    All told, I see rights as either existing or not, not up for negotiation, and DEFINITELY not subject to the whims of others.

    As for family law...marriage is a legal description in the US anyway, so I do not get what the big difference between a "civil union" or "civil contract" and a marriage.