Imagine that in this past election, there were state initiatives to ban interracial marriages because children might learn about them in school. Now imagine that there were racially discriminatory state initiatives designed to preserve the 'sanctity' of white neighborhoods. I would like to think that most Americans would be outraged. Some might respond that this could never happen because America has a legal system to ensure equal protection of all its citizens. Does equal protection really apply to all Americans or does it apply to all Americans except gays?
In May of this year, the California Supreme Court struck down the state's ban on same-sex marriage. The moderately conservative, Republican-dominated court ruled that citizens have a fundamental 'right to marry' the person of their choice and that gender restrictions violate the state Constitution's equal protection guarantee.
Religious and conservative groups slammed the decision as judges legislating from the bench and vowed to have the decision overturned by a vote of the people in the November election. They began campaigning for Proposition 8, an initiative to ban gay marriage in the state of California. Over $73 million was spent on the initiative and by a narrow margin, the ban was ultimately passed with a 52-48 percent vote.
In Marbury v. Madison, the U.S. Supreme Court ruled that 'An act of the legislature repugnant to the Constitution is void. The court went on to say, 'It is emphatically the province of the judicial department to say what the law is. If two laws conflict with each other, the courts must decide on the operation of each.' The Court reasoned that 'those who apply the rule to particular cases, must of necessity expound and interpret that rule.'
The decision reached by the California Supreme Court that the state's original ban on gay marriage violated the state constitution's guarantee to equal protection was not the result of activist judges pushing a liberal agenda. This was a Republican-dominated court and under the court's interpretation, the state's ban on gay marriage violated the state's Constitution. Courts have a huge responsibility to protect minorities and ensure equal protection under the law. For those who believe that the court's decision was judicial activism, I would like to point out that America has never had a purely codified system of government. Since its inception, America adopted common-law principles from England. America has a mixed legal system; our system is part common law and part codified law. It was well within the California Supreme Court's authority, duty and responsibility to rule on the issue.
Article Four of the U.S. Constitution states that 'The United States shall guarantee to every State in this Union a Republican Form of Government … ' Contrary to popular opinion, America is a republic and not a democracy.
John Adams distinguished a democracy from a republic by affirming that a republic is a 'government of laws and not of men.' The founding fathers were cautious about how a democratic form of government would lead to the intrusion of individual liberties. James Madison wrote that the greatest danger to liberty lies not in the executive or legislative branches of government, but 'in the body of people, operating by the majority against the minority.' Madison forewarned that a 'pure democracy is unwieldy, dangerous in its passion, and subject to mob rule thereby lending itself to instability and violence.' The founders believed that the best way to safeguard individual rights from the impulsive will of the majority was to have a government of fixed laws, created by elected representatives ( as opposed to laws created by the people directly ) .
One of the problems with democracy is that voters tend to be irrational. Voter irrationality stems from the fact that voters have strong biases and are often uninformed on the issues. In California, voters were misguided into believing that allowing gay marriages would mean that churches would be required to perform same-sex marriages and that schools would be forced to teach children about same-sex marriages.
In America, we have a government of laws, not a government of men. We have elected officials to create the laws and courts to interpret them. It's perfectly fine for voters to decide whether or not to raise taxes to build bridges or schools, but complex issues pertaining to individual liberties should be decided by public officials who can be held accountable for their public policy decisions. There is no accountability for anonymous voters and considerable questions could be raised about their objectivity and familiarity with the issues. The fact that California's ban on gay marriage came from a vote of the people adds neither to its credibility nor its legitimacy. It is completely un-American for people to randomly target a class of people, form mobs and then raise millions of dollars to disenfranchise that particular group.
While there are many Americans who are uncomfortable with the idea of gays having the right to marry, marriage is a fundamental right and should not be decided by a whimsical tyranny of the majority. Madison warned that 'If a majority be united by a common interest, the rights of the minority will be insecure.' Today, gay rights are insecure in California because of mob rule. The founders were wise enough to realize that corruption would follow from mob rule. For supporters of Proposition 8 and other state bans on gay marriage to ignore the wisdom of the founders is reckless and sets a dangerous precedent for the sake of political expedience.
Jamar Osborne is a nationally published columnist and human-rights activist. He has a J.D. from the University of Oklahoma and a bachelor's degree from Cameron University.