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Americans may argue about what liberties are protected in our founding documents, but on this, most people will agree: Fundamental freedoms should not be subject to a popular vote.
Had a national referendum been taken in 1960 on whether to extend the vote to blacks, it almost surely would've failed - especially in the Democratic South. If the Second Amendment's right to bear arms were put to a referendum right now in Washington, D.C., or in Chicago, it would likely run into trouble. Neighbors don't get to vote on whether a protest is permitted downtown. Communities aren't allowed to decide whether the local pharmacy can carry birth control.
Courts exist, in part, to decide when majority rule cannot be reconciled with fundamental rights. They were established for the express purpose of defending minorities against the tyranny of the majority.
In California last week, a federal judge ruled that a statewide referendum to bar gays from marrying was irrational on its face. Judge Vaughn Walker said there was no evidence presented to support the idea that gay marriage harms society or the institution of marriage.
He ruled that morphing gender roles had altered the very nature of the marital contract, making it a pact between equals. And he argued that religious disapproval cannot be grounds for civil law.
But he also ruled that the results of the referendum didn't matter because "fundamental rights may not be submitted to a vote."
It is that principle - articulated in a 1943 Supreme Court decision cited by Walker - that may eventually undermine laws and state measures all over America.
There is no doubting that anti-gay marriage laws are popular. Their very presence on the ballot can change the outcome of an election.
But if marriage is a fundamental individual right, then how can it be subject to a legitimate - and constitutional - vote? If marriage is
not a fundamental right, then what is it, and what role should society have in promoting it?
Those questions are likely to speed the case through the federal judiciary and to the U.S. Supreme Court.
A decision there can't come soon enough.
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<<< For 2000 years marriage
<<< For 2000 years marriage has been between a man and a woman. >>>
Actually, for all 6,000+ year of recorded history.
So in other words, the
So in other words, the editorialist wants the federal courts with its unelected judges with lifetime appointments, to operate as a super-legislature, and decide the great issues of our time ?? Bypassing the will of tens of millions of voters ??
That is judicial tyranny, worthy of the Soviet Union.
for pierre: re: sep of church and state
Reflecting a concept often credited in its original form to the English political philosopher John Locke,[1] the phrase "separation of church and state" is generally traced to the letter written by Thomas Jefferson in 1802 to the Danbury Baptists, in which he referred to the First Amendment to the United States Constitution as creating a "wall of separation" between church and state.[2] The phrase was quoted by the United States Supreme Court first in 1878, and then in a series of cases starting in 1947. This led to increased popular and political discussion of the concept.
The concept has since been adopted in a number of countries, to varying degrees depending on the applicable legal structures and prevalent views toward the proper role of religion in society.
Thanks
Thanks for the info but my comment was about the constitution. Jefferson and Madison said a lot but there's only one constitution and it does not mention the separation clause that so many people mistakenly quote.
civil vs religious rights and rites
In the history of our country, we have always expanded rights; for example: the right to vote went from white men with property to all white men; then to all men of all colors after the amendment banning slavery; then to women in the 1900's.
We have never restricted rights or made such amendments until it came to alcohol prohibition. Taking away the right to consume alcohol in one amendment, then reinstating it in another amendment to the constitution; i.e. nullifying the previous restrictive constitutional amendment. We saw that rescinding rights and choice was a bad thing.
In the USA we have blurred the distinction between civil marriage and religious marriage. We allow civil magistrates to perform civil marriages only. On the other hand, we allow religious ministers to preside at a "combo" civil/religious marriage. I believe that this civil/religious combination regarding marriage has muddied the issue of civil, same-sex marriage. It's difficult for many, both intellectually and emotionally, to separate the two: civil and religious.
If we continue to honor the constitutional separation of church and state, we should have no problems. Churches and other religion
Review
The constitution says nothing about separation of church and state.
Right?
For 2000 years marriage has been between a man and a woman. Now because a homosexual judge nullifies 7 million voters it's a right? Or is it a right because the far left op ed board says so?
The latter. The Pilot
The latter. The Pilot wouldn't even run my post and it didn't violate any guidelines. They just didn't agree with my viewpoint, so they censored it.
Not a valid argument
Let's assume for the moment that your assertion,"for 2,000 years marriage has been between a man and a woman," is not a gross oversimplification. That in no way justifies resisting change.
Societies embraced slavery for at least that long, yet we now accept freedom from enslavement as a basic right. Or would you disagree?
You don't put rights up to a
You don't put rights up to a vote. If the issue of segregation was put up to a vote in 1954 in southern states, they would have voted 95% in favor of maintaining it. That would have been wrong legally, and morally. That was not "judicial activism", it was the law.