According to the wise men that framed our revered Constitution, protecting individual rights from the forced will of a passionate majority is exactly what should happen in our great, free republic.
Governor Chris Christie of New Jersey apparently disagrees.
When Gov. Christie vetoed that state’s same-sex marriage bill, he issued a statement saying “an issue of this magnitude and importance, which requires a constitutional amendment, should be left to the people of New Jersey to decide.”
Recently, the Ninth Circuit Court of Appeals declared the anti-gay marriage amendment in California, Proposition 8, to be unconstitutional. Among the arguments put forth by those that howl in protest against the ruling is that the “activist court” overruled the “will of the people.”
The men who wrote the Constitution for the United States of America, however, envisioned a system to secure individual rights, and prevent the “will of the people” from being able to suppress the rights of those in a minority.
We cannot simply vote away equal treatment under the law, and that is one of the things that makes this country great.
James Madison described the dangers of pure majority rule and “faction” rather clearly in his 1787 Federalist Paper No. 10:
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.
“… When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.”
Do same-sex couples currently have the same rights as straight couples to have their marriages recognized at the federal level? No, the privileges afforded straight and gay marriage are not universally equal.
Therefore, I would argue that those opposed to the recognition of same-sex marriage are “of interest, adversed to the rights of other citizens” and by James Madison’s definition, a “faction” against which the Constitution should protect.
Frankly, I cannot see any threat to society in allowing gay people to wed. I know that when my uncle died, my grandmother excluded his partner of over thirty years from the funeral and any related decisions. That horrible injustice could not have happened had my uncle been able to marry.
These couples are not asking for special treatment. Those who believe in the wisdom of the great men who shaped this country should realize that same-sex couples have the fundamental right to be treated the equally by the state.
I think good, old, heterosexual marriage will be ok, too. Men and women happily continue to marry each other in Argentina, Belgium, Canada, Iceland, and the Netherlands. Humans are still spawning nicely in Norway, Portugal, South Africa, Spain, and Sweden, too. These are all places where same-sex marriage is legal.
In addition, much to the surprise of those who cling to my favorite stupid, slippery slope argument, not one person in those countries has gone on to wed a child, a sibling, or a really cute sheep.
When the Ninth Circuit Court of Appeals declared Prop 8 unconstitutional, the system worked exactly as James Madison had envisioned.
Governor Christie and his “faction” are wrong, and if they were here, I believe our enlightened Founders would agree.