The Indirect Implications of the Proposition 8 Ruling on Government

I have long held the opinion that the present method by which we govern ourselves in the United States is far removed from the method intended by our Founders in the Constitution. That method was for a national government to exist to unite the states in matters of a global scope like national defense and trade with other nations.

In essence, the Constitution was not a rights giver but instead a document intended to define the role of the various departments of the national government. The Amendments mentioned rights the people retained although not all the rights of man were included in them. The Tenth Amendment was intended to clear the notion that non-national issues were to be resolved at the state level by state governments.

Making most of the decisions at the state level would give citizens a greater level of freedom and secure them a greater quality of representation. Habit and preference, not a strict following of the law or necessity, put us on the path we have been on since the 1930s. Issues have been unnecessarily nationalized and dealt with by politicians who know less about us than the ones who represent us in our state capitals. Big government has made government more present yet less responsive and less effective.

An Amendment to the California Constitution to define marriage as a union between a man and woman is an attempt by citizens to democratically govern themselves using the Founders desired method of utilizing the state for such issues of domestic importance. The argument against that Amendment is a constitutional one – where critics say that same sex couples aren’t given the equal protection of the laws.

Precedents and rulings made by judges have defined and altered what equal protection of the laws means. It is actually more accurate to say “what those words seem to mean today by those interpreting them today.” Because the definition has changed and the trend is for the scope of its meaning to be broader and more generalized the question is then – where does it stop? Where does it cease to apply?

A more obvious question pertaining to its end includes, whether equal protection is one day to mean that everyone have parcels of land that are equal in size? Or equal in that all of us have the same amount of wealth? I don’t know how much this clause or other clauses can be stretched, but regardless of your views on the matter, one must admit that people are increasingly less and less able to govern themselves democratically when decisions such as the one made by this court are made. I am not saying that the decision was a wrong one, only that our nation is becoming less democratic when decisions and precedents like these are made and set; today we have even fewer things that we can decide for ourselves in the democratic process.

Regardless, too, of our views on the issue of marriage, we must realize that there is a tyranny of the minority in this country and that it is gaining momentum. A minority of California voters believe in same-sex marriage and yet today same-sex marriage is the law in California. The ruling and the law was made by one judge and it trumped the vote of millions. What better example of the tyranny of the minority at work? What better example that the power of the people continues to diminish?

A similar amendment in Florida passed a few years ago and yet has not seen the controversy that the California amendment has attracted. This can be traced to the strong interest groups in California compared to Florida’s. Therein lies the problem of strong factions as explained by James Madison in The Federalist – but that requires another sitting. One of the reasons for the tranquility of the Florida marriage amendment is also the way it was presented. It was presented in a way that supporters said would not inhibit civil unions from being approved in Florida’s legal future. It explained that civil unions and marriage were separate and that civil unions had little to no implications on religious freedom. With civil unions, the church would not be forced to change its Bible and would not be forced to marry same-sex couples against their beliefs.

This is moderation in governance and good democracy; an example of our Founders original intention for how we should govern ourselves – with an eye on our will and another toward the future. Above all, it is good law making and California’s mess has riled up the whole nation into an unnecessary national debate once again. It will undoubtedly inspire many to take swift national action and once again, in accordance with the trend, ignore the Constitution or the way things were meant to be; a domino effect that will continue to make our nation and our laws less democratic and less flexible to our changing will that comes with the changing times.