On the one had we have democracy which is the rule of the majority. The government derives its just powers from the people.  So a government has to be fundamentally democratic to wield any power justly.  A government that foists the desires of a minority over the majority would be an unjust oligarchy, and tyranny of the minority.

However, the founders were also very suspicious of pure democracy because more often than not it devolved into a tyranny of the majority, where the majority unjustly tramples the rights of the minority.

So while keeping the government fundamentally democratic, they structured the government with a series of checks and balances based on distributing democracy to competing scopes that would prevent the states with large populations from tyrannical rule over the states with small populations, while still allowing government action to be derived justly from the people.  They called this a Democratic Republic.

In the case of Prop 8 the majority has ruled to uphold traditional marriage norms through democratic vote.

Those who favor same-sex marriage lost at the ballot box and view this as an act of tyranny of the majority, so they have turned to the courts to try to overthrow it.

Those who favor traditional marriage view the court case as an act of oligarchy, a usurpation of the democracy from which the government derives its powers.

Now we come to the arguments made by the lawyers before the California Supreme Court.

The proponents of same-sex marriage appear to be making the tyranny of the majority argument– that their rights are trampled by the majority.  But they are fail to explain how the government can justly foist their view upon a majority who disagree.  Unless you have a norm for judging the justice or injustice of democratic action, how can you distinguish between just democracy and unjust democratic tyranny? It can’t simply be that any democratic action you disagree with is tyranny.  If arguments of the proponents of same-sex marriage were to win, then our government would soon lose its legitimacy because it’s powers could no longer be clearly derived from the people.

On the other hand, Ken Starr, representing the Proponents of traditional marriage, argues that rights are defined by the majority and the majority can revoke and bequeath all rights.  This is not an argument for just democracy but for democratic tyranny.  He argues that our rights are derived from the majority of the people.  If the argument by the proponents of traditional marriage were to win, our government would quickly devolve into an unjust tyranny where the rights of a minority could be revoked by the will of a strong majority.  Again, unless you have an external norm by which the justice of a democratic vote can be evaluated, you cannot assume that all democratic actions are just.  This would open the door to the revocation of rights from any unpopular minority by a motivated majority. (Which, while they may desire when it comes to same-sex marriage, they may no be so keen for when it comes to the redistribution of wealth.)

Heads we lose; tails we lose.  Either argument results in unjust government.

The correct argument for both sides lies in the recognition of the source from where both our rights, and the powers we delegate to government originate.  The founding document of our nation, the Declaration of Independence, explains it:

We are endowed by our Creator with certain inalienable rights.  Among them life, liberty, and the pursuit of happiness.  The justice of our government must be measured against the Laws of Nature and Nature’s God.

Laws and constitutional amendments may be enacted through proper means, and still be unjust when measured against the Natural Law.

My rights don’t come from the government and they don’t come from the democratic will of the people.  They come from God.  Unless there is a source, external to both government and man, to which we can turn to claim our rights in the face of tyranny and injustice, how can anyone justifiably fight  either?

Proponents of same-sex marriage declare that laws and amendments that allow only for traditional marriage are unjust.  But upon what grounds?  Rights? Can they rest on the Laws of Nature and Nature’s God or the rights with which we are endued by our Creator without undermining the very justness of their same-sex relationships?  Can they declare the actions of the voters of California an unjust abridgment of their rights while refusing to identify a consistent standard by which that injustice is measured? They need to give a clear standard by which we can all judge the justice of same-sex marriage and the justice of prohibiting simultaneously both polygamy and adult incest.

Even if they are justified in their complaint, are their methods justified?

If the only way to throw off the yolk of injustice is to overthrow the checks and balances of the Republic and remove government power from its just foundation on the will of the people, then isn’t it better to submit to and endure an unjust law until it can be changed through patient, proper, constitutional means than to expose us to the huge danger that such an overthrow would bring?

This was just the situation that the nation faced with the issue of slavery before the Civil War.  The fugitive slave laws were legal and judged constitutional.  But they were contrary to the Laws of Nature and Nature’s God, and so they were unjust laws.

Many abolitionists took the view that such unjust laws could and should be defied.  In their minds, any law that contradicted the Natural Law was not a real law.

By the same standard, modern conservatives decry abortion laws.  It may be legal, but the law is unjust as measured by the Natural Law.

Abraham Lincoln spoke about those Abolitionists and their defiance of unjust law in his famous speech to at the Young Men’s Lyceum:

When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made.–I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed….

There is no grievance that is a fit object of redress by mob law. In any case that arises, as for instance, the promulgation of abolitionism, one of two positions is necessarily true; that is, the thing is right within itself, and therefore deserves the protection of all law and all good citizens; or, it is wrong, and therefore proper to be prohibited by legal enactments; and in neither case, is the interposition of mob law, either necessary, justifiable, or excusable.

Either same-sex marriage is right within itself, and therefore deserves the protection of all law and all good citizens; or, it is wrong, and therefore proper to be prohibited by legal enactments.  The same can be said for Abortion.

That should be the argument being made.  Right in itself or wrong.

Laws contrary to right and wrong should be endured until they can be changed through normal, democratic-republican, constitutional means.

We should reject both the oligarchy of the same-sex marriage faction, and the rights come from the tyranny of the majority of the traditional marriage lawyers, and work to produce a just government, measured against the laws of Nature and Nature’s God and the self-evident rights with which every individual was endowed by the Creator.

My personal opinion is that while homosexuals do have a number of  just grievances that we should listen to and address in the most just way possible, the redefinition of marriage is wrong in itself and should be properly prohibited by law.

While there are certain to be fools and bigots among the opponents of same-sex marriage, just as there are among its proponents, opposition to same-sex marriage is not irrational. It is not ignorant or uninformed.

Just as those in favor of same-sex marriage have legitimate concerns and rational arguments for their stance on the subject, so do those of us who oppose it. Going around trolling the blogs and facebook walls of those who support the traditional definition of marriage and describing their position as irrational and ignorant certainly isn’t going to win you many converts.

So rather than shut down constructive conversation by treating those with whom you disagree as idiots, why not acknowledge that at least some of their points are valid concerns; that you can see how they would be concerned, even if you think that other considerations should overrule that concern.

Same-sex marriage advocates certainly have some strong arguments in their favor. So do opponents. That fact should be acknowledged.

Those who oppose Proposition 8 frequently like to claim that the concerns of those who want to preserve traditional marriage are all hypothetical slippery-slope arguments based on fear. Just because something is hypothetical does not mean it is irrational. While slippery slope arguments are often dismissed, there are plenty of historical examples of slippery slope hypotheticals that ended up being accurate. Just because you cannot conceive of any immediate consequences to allowing same-sex marriage, doesn’t mean that there wont be unintended consequences that emerge later. Reality is not limited by your ability to imagine consequences. Just look at the current financial crisis.

As Jane Galt has argued so well, the history of the U.S. Income Tax, or extending government welfare to unwed mothers, or easing the access to no-fault divorce are all examples of slippery slopes. In complex systems, even small changes can have large, unexpected consequences.

It is like adjusting the water temperature in the shower. The full effect of increasing the hot water isn’t immediately felt. So you can’t judge the effect until you wait long enough or else you might get burned because while the immediate temperature felt fine, the water hadn’t made it through the pipes yet. It is not irrational to be concerned about flippantly changing something so central to society as marriage to a definition that it has never had in all of history. While there may not be an immediate effect, we are likely to get burned down the road, once the water has made it through the pipes.

Proponents of Proposition 8 say that allowing same-sex marriage could lead to an abridgment of their religious freedoms and parental rights, and already see signs of this happening. Opponents dismiss this concern as a lie used to promote fear. California law already allows parents to opt their children out of sex education, they argue, and religious freedom is guaranteed by both the U.S. Constitution and California state law.

However, a simple assertion of freedom of religion is an oversimplification of the complexity of religious freedom and law in the U.S. When the LDS church was persecuted for polygamy in the late 1800s’, the Supreme Court ruled that the freedom of religion extended only to religious belief, not to religious action or practice. So, while the Latter-day Saints were free to believe in polygamy, they were forbidden to practice it. The government confiscated the property of the Church and revoked the right to vote of many of the members.

In other words, people in the U.S. are free to believe whatever they want, but if they act on beliefs that the Government deems immoral, the government can restrict and punish their religious actions.

So churches who teach that homosexual behavior is a sin and that same-sex marriage is inferior or wrong have a legitimate concern that the legalization of gay-marriage could effect their freedom of religion down the road. Their beliefs are protected, but any attempt to act on that belief could be conceivably restricted or punished. Labeling their concerns as discrimination and bigotry only reinforces that concern.

[For those of you who scoff at what you consider the hypocrisy of the LDS church’s resistance to government proscription of polygamy in the face of its support for the proscription of same-sex marriage, see my previous article here .]

While it is true that California law allows parents to opt out of the sex-education section of the curriculum, the fact is that laws are not static. They change all the time in subtle ways. Just because religious parents will not face an immediate threat that their children will be required to be taught about same-sex marriages, doesn’t mean that they are not justified in being worried that once same-sex marriage is established, the laws will change. As a current example, while the ADL, the ACLU, and HRC are in California saying that it is a lie that parents will have to let their children be educated about same-sex marriage, those same groups are in Massachusetts filing amicus briefs arguing parents don’t have any right to opt their children out of the pro-gay marriage curriculum (see here= ).

It’s like chess: just because your King is not in immediate danger doesn’t mean that your opponent’s current move wont set up a check-mate scenario. Parents and Churches are looking a couple of moves ahead and rightly worried. That is very rational and wise, not irrational.

In addition to these concerns, the manner in which same-sex marriage has been foisted on our nation through judicial overreach should be a major concern for those who support our constitutional, democratic republic. The California supreme court went well beyond its power and created ex-nihilo a fundamental right to marriage that has never before existed. In doing so they have usurped the democratic process and unconstitutionally claimed powers that they do not have. Even those who support same-sex marriage should be very concerned about the way in which it is being forced upon the nation and destroying our constitution. (See Orson Scott Card’s recent article)

The concerns of those of us who oppose same-sex marriage are not inherently irrational or fundamentally bigoted. They are legitimate concerns. I hope that some of you who want same-sex marriage to be legal will at least acknowledge that fact, even if in your mind your rational concerns about discrimination and rights trump ours.

If you live in California, Vote “Yes” on Proposition 8 to keep the traditional definition of marriage.