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Gay Rights vs. Democracy

The opinions expressed by columnists are their own and do not necessarily represent the views of Townhall.com.

It is the essence of democracy that people should be able to decide the moral rules that govern the nature of a community. If people don't have that power, then they are living under an autocracy.

True, this majority rule is not unlimited. It is limited by what the government has the power to do. Consequently the majority cannot, in general, vote to seize the homes and accumulated savings of rich people. Leaving aside exceptional cases, government cannot mandate how parents how should raise their children. These kinds of power lie outside the scope of government in a free society.

Majority rule is also circumscribed by individual rights. But these are the rights clearly specified in the Constitution. A majority of citizens cannot prevent an individual from voting because voting is a basic right, as is the right to freedom of speech and freedom of religion, and so on. The state is constitutionally prohibited from undermining these enumerated rights.

Now the high court of California has made gay marriage into a right that is immune from restriction by the majority of citizens in the state. We already know what California citizens think about gay marriage: they oppose it. A referendum outlawing gay marriage was passed with the support of the state's voters. More than 60 percent of voters cast their ballots against gay marriage.

How, then, can a court invalidate the referendum and over-rule the will of the people? Basically through a kind of legal fraud. The court has to pretend that there is a right to gay marriage even though it is nowhere evident in the state constitution. Read the constitution, hold it up to the light, squeeze lemon juice on it--you won't see a right to gay marriage in there. It is simply not an enumerated right, nor is it a right that can be clearly derived from other enumerated rights.

In issuing its ruling the California court appealed to the equal protection clause of the Fourteenth Amendment. The basic logic is that gays have a right to be treated like everyone else. But just like everyone else, gays do have the right to marry. They have the right to marry adult members of the opposite sex! What gay activists want is something else: the right to marry members of the same sex. This is not a right currently enjoyed by anyone. What these gay activists seek is not equal treatment but rather to change the definition of marriage.

But states have a legitimate right to define marriage. State legislatures, drawing on tradition and appealing to the values of their constituents, have defined marriage in a very particular way. Marriage requires a) two people who are b) of legal age and c) not closely related to each other who are d) one male and one female. Note that this definition excludes people who want to marry children, or guys who want to marry their sisters, or Muslims who want to take four wives, or that strange guy who wants to marry his dog.

Now gay activists, with the acquiescence of the California high court, want to remove one of the criteria of marriage while keeping all the rest. Yet if it’s discriminatory to gays to require that marriage be between a man and a woman, why isn’t it discriminatory to Mormons and Muslims to require that it remain between two people? Isn’t incestuous marriage also between “consenting adults” who have a right to equal protection of the laws? And why doesn’t the Fourteenth Amendment protect the fellow who wants to walk down the aisle with his poodle on the grounds that “I love my dog and my dog loves me”?

The point is not that gay marriage is indistinguishable from child marriage or polygamy. The point is that any definition, and marriage is no exception, includes some people and excludes others. Consequently it’s unreasonable to say that gays have a constitutional right to over-ride the definition but other groups do not. The court’s real justification seems to have little to do with constitutional reasoning and everything to do with an assertion of political power.

Political power has its place, and that place is in the legislative and executive domain. So in the California high court decision, we see liberal jurisprudence subverting the legislature and the will of the people in order to achieve its ideological agenda. This is not about whether you think gays should be allowed to marry. If you think they should, go ahead and vote for candidates who support gay marriage. But you should still oppose the manufacture of bogus rights in order to reach a result that democracy would not by itself allow.

Attempting to insulate themselves from the political fallout, Hillary Clinton and Barack Obama said very little about California’s legalization of gay marriage, muttering only that they have long opposed the idea. The real question, however, is what they would do to express this opposition. What would a President Obama do, for instance, to protect traditional marriage? Here the answer appears to be: nothing!

In the past Democrats have always appreciated courts doing their dirty work when it comes to issues like abortion, pornography, prostitution and gay rights. This way Democrats can advance their permissive agenda without having to take political responsibility for voting against the values of a majority of voters. It’s time to make the Democrats pay for this in the November election.

I know that there are gays who desperately want gay marriage, and in a way I'm happy for them. But at the same time I'm sad for constitutional democracy, which suffered a grievous blow at the hands of the California high court.

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