Federal

by James Lynne

Created on: August 13, 2008   Last Updated: January 19, 2009

Just as the Supreme Court of the US had to remove anti-miscegenation, abortion, and civil rights laws from state authority, it will also determine gay marriage. Majority rule, although democratic, is not what the founding fathers intended in framing the government of the United States. According to James Madison, the Father of the United States Constitution, in a democracy "there is nothing to check the inducement to sacrifice the weaker party or the obnoxious individual."

It is a misconception in the United States that the majority has the right to decide the rights of all citizens. Our Founding Fathers were well aware of the dangers of majority rule and warned against those dangers, by establishing the US not as a Democracy, but as a Representative National Republic. Allowing the individual states to decide the rights and privileges of interracial or gay marriage is an obvious example of Madison's statement that in a democracy there is nothing to check the inducement to sacrifice the "weak or the obnoxious," meaning those who were not of majority opinion.

The right to create laws regarding gay marriage within the US will inevitably reside within the power of Federal Government; not state government, because the citizens of individual states have no inducement to protect the rights of the gay minority. Fisher Ames, Massachusetts congressman during Washington's presidency wrote, "Democracy, in its best state, is but the politics of Bedlam; while kept chained, its thoughts are frantic, but when it breaks loose, it kills the keeper, fires the building, and perishes." Democratic majority rule has historically proved the majority has little inducement to protect the rights of minorities.

Loving versus Virginia (1967) was a landmark civil rights case in which the United States Supreme Court declared Virginia's anti-miscegenation law, the "Racial Integrity Act of 1924," unconstitutional; thereby ending all race-based legal restrictions on marriage in the United States. Prior to this landmark decision each state in the US separately decided whether or not interracial marriage was legal in that state. A mixed race couple could be married in California, but when traveling to Virginia face arrest for violating Virginia law. There are some issues our founding fathers knew could not be trusted to majority rule. Their warnings against the dangers of democratic rule are evidenced in their writings as well as in the framing of our government.

The Constitution for the United States of America guarantees a Republican, representative, form of government, not a Democracy. The Pledge of Allegiance to the flag states, "I pledge allegiance to the flag of the United States of America and to the REPUBLIC for which it stands." Nowhere within the Constitution nor in the Articles of Confederacy, which preceded it, is there mention of a democratic form of government. The Founding Fathers didn't intend for the United States to be a democracy. Many of the founders, such as John Quincy Adams, were expressly against Democracy. "The experience of all former ages had shown that of all human governments, Democracy was the most unstable, fluctuating and short-lived". Within a democracy, the citizenry brings about its own demise, ruling by bias, passion, and prejudice rather than by reason.

What our forefathers created was a "Representative National Republic," a republic that is directed by rule of law not by the passions of its citizens. James Madison wrote, "Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths." Democracy has historically failed because of the passions that drive it.

Democracy leads to tyranny by the majority. A government in which the will of the majority is imposed on the minority without respect to the rights of the minority, deprives the minority of the rights of citizenry. Majority rule often leads to mob rule enforced by the most passionate voices, rather than what is best for all. The right of the majority to decide what is law carries with it the responsibility of the majority to consider not only itself, but the right of the minority as well. In a democracy, it would seem acceptable to allow each state to decide for itself the marital rights of its citizens, but is the majority capable of deciding so by reason rather than by personal prejudice, bias, and religous passion?

Majority rule by the individual states allowed the Southern States of the United States to utilize the institution of slavery until the Thirteenth Amendment to the Constitution was ratified on December 6, 1865. The Civil War during the 1860s in the US stands as the most significant proof that the US is a Republic rather than as a Democracy and that certain laws must be Federal rather than state. As such, the rights of citizens to marry cannot be decided at the local level. The benefit of all must be considered rather than the bias of local opinion and religious tradition.

John Quincy Adams states, "Remember, democracy never lasts long. It soon wastes, exhausts and murders itself. There was never a democracy yet that did not commit suicide." Democracies commit suicide because they fail to guard the rights of the few as well as the rights of the many. Democracies fail because they fail to move beyond bias into broad understanding. Democracies fail, as Madison states, because of their propensity "to sacrifice the weak and the obnoxious" in favor of their own prejudice and passion.

Whether one views gays as "weak or obnoxious" is not the point. Madison's semantics merely point out that there are those of minority position within any culture, whose rights must be protected by the majority. Not doing so establishes tyranny at the hands of the majority. Gays are the minority, with a legitimate cause, the right to marry within their own sexual orientation. Local, state, majority rule establishes an arbitrary and inconsistent application of law relevant to gay marriage, much like individual state anti-miscogeny laws did.

The right of the states, through democratic process, cannot be used to deprive gays of the right to marry any more than state law was allowed to criminalize interracial marriage. The Federal laws of the Republic of the United States of America must always supersede the local laws of individual states in matters where local democratic tyranny by majority rule deprives minority citizens of rights and privileges.

The U.S. Supreme Court, in the historic Lawrence v. Texas decision, ruled on June 26, 2003, that all sodomy laws in the individual united states were unconstitutional. Most of the sodomy laws in the US dated back to the Puritan era, supporting a religious agenda against homosexuality. These laws had little relevance beyond emotional and passionate religious bias. According to the Supreme Court, what consenting adults do in the privacy of their own bedroom is their business. It is not a criminal act. It took court action at the federal level in the Twentieth Century to force individual states after more than two hundred years of passionate, religious bias, discounting the rights of the "weak and obnoxious" to change outdated and archaic state law regarding the sexual rights of the gay minority.

The Supreme Court's ruling in Lawrence v Texas did not directly address the issue of same-sex marriage, but it ruled that the state could not single out gay people for discriminatory treatment simply because of "moral disapproval" of their sexual behavior. The majority decision in this ruling speaks of "respect" for same-sex couples and warned, "the state cannot demean their existence." Justice Kennedy, writing for the majority, also wrote that reducing same-sex couples to "sex partners," is as offensive as describing a husband and wife as nothing more than sex partners, thus paving the way to a future decision regarding gay marriage.

It is clear that certain issues cannot be left to individual state authority if there is to be cohesion among the fifty united states. The right of homosexuals to marry according to their own gender preference, like the right of minorities to marry according to personal choice, cannot be decided equitably at the local, state level or even by majority rule. In the words of James Madison, "there is nothing to check the inducement (of the majority) to sacrifice the weaker party or the obnoxious individual."

Regardle ss of the decisions of individual states in approving or denying gay marriage, it is inevitable that the ultimate decision will lie within the purview of the Supreme Court of the United States. The Supreme Court will decide the gay marriage issue in the same manner as it did in guarding the civil rights of Black Americans, inter-racial marriage, the right of women to choose between pregnancy and abortion, and private sexual behavior between consenting adults.

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