http://www.townhall.com/Common/PrintPage.aspx?g=b0068032-06fb-4a1b-b4c1-5cbfbcc6d30d&t=c
Gay Rights vs. Democracy
By Dinesh D'Souza
Monday, May 19, 2008
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 sup****t 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 ***! What gay activists want is something else: the right to
marry
members of the same ***. 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 *****uous 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 sup****t 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, ****ography, 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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