Heads We Lose; Tails We Lose: Both Sides Wrong in The Proposition 8 Case Legal Arguments

I’m afraid that whomever wins the day in the California Proposition 8 legal battle, we all lose in the long run.  I’ve been trying to follow the arguments presented by both sides to the California Supreme Court and while I support Proposition 8, I think the arguments being made by both sides are pretty dangerous.  A lot of the argument goes back to the fundamental arguments made during the formation of the U. S. Constitution and then solidified during the Civil War.

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.

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One Response to Heads We Lose; Tails We Lose: Both Sides Wrong in The Proposition 8 Case Legal Arguments

  1. Facebook User

    Unfortunately … our world currently doesn’t want God in any part of it. So what do we do?

    Abortion is clearly wrong in the sight of God’s laws… but it’s accepted. Nobody does anything about it, because the law provides for it. Ask any Mormon about it – there’s that shrug of the shoulders… “what can we do?”

    Is that what will happen with same-sex marriage? At the rate we’re going – probably. But… I guess it has to – what with Isaiah’s good will be called evil, evil good, sweet bitter and bitter sweet.

    I honestly don’t think that the anit-8 side cares one whit about the rule of law. The second time California’s have voted on this. Second time we’ve dealt with this. AND still they can’t seem to obey the will of the law. In fact, they flaunt it and curse it because they didn’t get their way. Petulance all around.

    Sorry… I’m a little ticked…and am waiting for the pain meds to start working on my “holy mouth”. 😉

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