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.
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