Marriage and Tyrants

One individual has recently ruled that 58% of Californians don’t have the authority to change their state Constitution. Three issues are at stake here.

The first, and arguably the greatest, is the question of what is a right? Rights are fundamental principles that reside with the people. They exist outside of and above government. That is, no government ‘gives’ me a right, or even, in the strictest sense, guarantees a right, the right exists no matter what the government wishes. The people can, however, direct the government expand time and effort in protecting and defending rights.

As a general rule, the history of all governments is one of the organs of government, the bureaucracies and those in power, trying to continually limit the rights of the citizenry. Constitutions exist in order to limit government and hence control those efforts. But the important point here is that rights are not ‘provided’ by government, they exist apart from the government itself.

The second issue is whether the people of a state – Californians in this case – have the right to amend their Constitution so as to define an issue that is not otherwise defined. Note that Californians were not trying to usurp a specifically federally defined or protected right (though other states have). Nowhere in the US Constitution is there any effort to define marriage.

There is, however, an amendment that would seem to apply to such a case – the 10th, which states quite simply that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since declaring a couple as married is a power of the state (we’ve all heard the words from a priest, minister, rabbi or justice of the peace that includes, somewhere, words to the effect ‘in accordance with the powers granted by the state of XXX’), defining a marriage is a power residing at the state level. At least according to the several billion marriages that have taken place in the US since 1776.

This is not, of course, what the judge said. Rather, he referenced the Due Process clause of the 14th Amendment. It is worth looking at the original wording of that clause: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

But for that to apply he would have to be referring to a right. But marriage is not a right. Marriage is a contract. With all contracts there come limitations, limitations that have as their basis understandings from common law, which is from society. And so, an adult cannot make a contract with a minor, except through a legal guardian. No contract is valid if it entails breaking the law, and so forth. I don’t know if anyone still pays attention, but the purpose of blood tests before marriage was to test for certain diseases. States would fail to grant a marriage license if one of the two people applying were carrying certain diseases. Marriage therefore is not a right in the strict sense. Rather, it was something that had been defined by society through the course of time.

As to equal protection under the law, the 14th Amendment refers to any person. In as much as marriage is about two persons in a contractual relationship this also doesn’t seem to apply. The judge may claim great legal experience, but the Constitution was drafted to be read and understood by We the People. The words are clear. From where exactly the judge derives his understanding isn’t clear.

This leads to a third and final point: marriage is not a right; marriage is a relationship established and defined by societies from the beginning of time. There is no issue of rights that can exist within such a situation; it – marriage – is simply what the society has defined it to be. If enough people wanted it, marriage could be defined to include owning a dog; no dog, no marriage. Of course, marriage has traditionally been defined by society as the foundation upon which is built the basic unit of that society: the family. But it is a definition that was provided by the society over an extended period of time.

Now, we have one man who has decided that society does not have the right to provide its own definitions. Instead, he has chosen to read into this something that simply isn’t there in order to justify his usurping the people’s power. Whatever your belief about gay marriage, the greater issue here is that one man has gone out of his way to thumb his nose at the notion of democracy and the Constitution, to declare a de facto tyranny of the court. Maybe it’s time we have a few referendums on the judges themselves.