jeffwinget.com

I posted this at Connor’s Conundrums (I had sworn off commenting over there, but I digress) in response to a comment that Connor made on this post.  You can read the context over there if you’d like.  The blockquoted text is Connor’s; the rest is my response:

In a democracy, yes. In a republic, no.

This statement actually hurts your argument.  In a republic, a straight majority cannot subvert the law (ie. the Constitution), nor use its will to take away the rights of the minority.  We learn this in high school civics.  It’s the old argument majority rules vs. minority rights.  In the case of California, the majority spoke, declaring that marriage should be defined as being between a man and a woman.  The people in charge of protecting the constitutional rights of the minority (ie. the courts) stepped in and proclaimed the declaration of the majority to be unconstitutional and therefore not lawful.  That is how a republic operates.  If we were a true democracy, very, very few states would ever allow homosexuals to marry; however, since we are not, and the rights of the minority need to be protected in a constitutional republic, more and more state courts will be deciding the matter.

Notice also that the courts aren’t “legislating from the bench” as has  been claimed often by opponents of gay marriage and abortion.  They only act when a law is passed and the constitutionality of that law is challenged.  Ergo, a law banning abortion is challenged in the court, and the court proclaims it unconstitutional based on its interpretation of the constitution.  It didn’t legalize abortion by judicial fiat; it said that laws that ban abortion are unconstitutional.  Don’t like it?  Change the constitution with a vote (which, in most cases, requires some sort of “super” majority, keeping the “mobocracy” of majority rules from stripping the rights of the minority).

If Prop. 8 succeeds, then the court will be charged with upholding the new, amended constitution instead of the old one, and will be impotent in making any change to that proclamation.  Thank God (metaphorically, of course ) that it won’t succeed.

Other than that little beef, I’ve found this conversation stimulating and fairly well argued from both sides.