GAYS DEFEND MARRIAGE

A Web user responding to one of my arguments in favor of the California Marriage Protection Act wrote, “Allowing a majority of the people to decide the civil rights of a minority through a popular vote is simply bad policy. Should we have allowed the majority to vote on whether segregation should be ended or not?”

Actually, yes.

But allow me to explain: the reason defenders of man-woman marriage are pushing a vote on same-sex marriage is that is the only way a constitutional decision by the California Supreme Court can be overturned. A unanimous vote by the 120 members of the legislature, along with the governor’s vigorous approval, would change nothing without a vote of the people. Supporters of “marriage equality” can hardly complain that the system is unfair given that none of them objected to the process before the Supreme Court decision, and many of them voted for liberal California constitutional amendments in recent years on environmental, anti-smoking, education, and other issues.

I certainly feel that defenders of segregation in 1954 should have been allowed to introduce a Constitutional amendment overturning Brown v. Board of Education. That decision, which was one of the moral high points of the 20th century, had no special status that made it permanent. I definitely would have fought them, but if segregationists had convinced two-thirds of Congress and the Senate – and the state legislatures in 38 states – to pass a Segregation Amendment to the Constitution, what should have stood in their way?

A Super-Decider who gets to overrule constitutional amendments that aren’t consistent with his values would be the mark of a dictatorship, not a democracy.

The fact that California has a popular vote to amend its Constitution whereas the U.S. has a more complicated process is an accident of history, not a plot against gays.

The people crying foul that someone is trying to amend “their rights” should think about the Dred Scott case. That 1856 decision ruled that a white man had a property right to “own” an African-American. Do today’s complainers about the California amendment think Dr. John Emerson could have legitimately complained about people trying to amend his rights through the 1865 votes on the Thirteenth Amendment? Because contrary to popular opinion, it wasn’t the Civil War or even the Emancipation Proclamation that abolished slavery in the United States. It was the Thirteenth Amendment.

There has to be a process under which the people and/or their elected legislators can overrule constitutional decisions they don’t agree with. The process does carry the risk that good decisions may be overturned, yes, but that means bad decisions can be, too. I don’t want to live in a state where four justices (or a country where five justices) can have the absolute last word about important issues relating to the way we live.

Finally, while “marriage equality” advocates have the right to claim there is a civil right to same-sex marriage, very few experts agree with them. The Supreme Court has never recognized a federal right to “marry” a member of the same sex, and gay and lesbian groups have actively fought lawsuits seeking such a right, because they know they would likely lose. Massachusetts has a state constitutional right to same-sex marriage, and there will be one for about 4.5 months in California, at which point the people will decide whether that right should cease. The other 48 states provide no state constitutional right to same-sex marriage. And what is the opinion of the civil rights phenomenon of the century? “I don’t think marriage is a civil right,” said U.S. Sen. Barack Obama (D-Ill.) when running for the Senate four years ago.