Same-Sex Marriage: Are the People Sovereign, or is it to be the Courts?
On Nov. 4, 2008, the people of California, Florida and Arizona joined the ranks of the approximately 30 of the United States that have outlawed same-sex marriage either by amending their respective state constitutions or by passing appropriate legislation.
The three states mentioned above amended their state constitutions by the following margins: California (52%), Arizona (56%) and Florida (62%).
The results in California are causing the most controversy. Why? First, because same-sex marriages were already being performed in that state since June because the California Supreme Court refused to delay their ruling until the people could vote in November. Second, California is a much more liberal state culturally than either Arizona or Florida.
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Now we are witnessing the spectacle of same-sex marriage advocates going before the California Supreme Court in attempts to convince them to overturn the people's choice to amend their state's constitution. The legal theory in America and in the states that make up our Union has been that the ultimate authority in the law is the constitution, not the judges' interpretation of that constitution. When the people disagree with judges' interpretation of the constitution, both our Federal Constitution and the various state constitutions furnish the people with a way to give the judges further instruction on how they would be governed—the amendment process.
A majority of Californians have exercised that right and have amended their constitution to define marriage with great specificity and precision as being only between a man and a woman — no same-sex marriage and no polygamy. If the California Supreme Court were to now attempt to nullify what the people have chosen to do through an expression of their sovereign will, they will have attempted to usurp the sovereignty of government "of the people, by the people and for the people" and to replace it with government "of the judges, by the judges and for the judges."
I would urge the members of the California Supreme Court to read the text of the Declaration of Independence with great care, specifically these words:
"That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
(emphasis added)
If the California Supreme Court does not acknowledge its obligation to submit its collective judgment to a constitutional amendment passed by the people, then the democratic freedom reserved to the sovereignty of the people will have perished in California.
This column originally posted at Casting Stones, a blog hosted by Beliefnet.com.
