The news is rife with stories of opposition to various issues of morality and legality...but none more so than marriage equality/gay marriage/whatever you desire to label it.
The crux of opposition centers around judicial rulings that state prohibitions on gay marriage are unconstitutional. The opposition claims that these rulings override the 'will of the people'...and inn many cases, based on elections and initiatives, they do. On the surface.
However, this premise rests on the notion that 'the people' are Constitutionally empowered to create or retain law based solely on a majority opinion of religious morality....regardless of secular value.
So my question, to any and all, is this: does the American polity, nationwide or at the state level, retain the Constitutional power to create or retain law that prohibits an action of the minority, yet is legal for the majority....and where the basis for such a prohibition contains no public safety risk or burden upon said majority?
Individual rights are more important than democracy.
ReplyDeleteDemocracy, after all, should only be used to control the rulers. It should never be used to control the people.
Well, your closing conditional touches upon how this actually works, and its subjective nature. Marriage, as defined by the states, does involve the state, and the state does assume some burden, in the case of abandonment, for example. .
ReplyDeleteAmerica has been able to "create" or "discover" rights because of the nature of the Constitution. Essentially, if the states allow something new, like homosexual marriage, and the Constitution has nothing to say about it, and that something involves interstate commerce or erstwhile recognition, then the federal government can instruct states that have not yet adapted that new thing to allow it. In this case, that's how it happened.
You are completely correct to say rights should not be subject to direct plebiscite. Rights are discovered in America through a process that emanates from the states and moves through eventually to the Supreme Court or Constitutional Amendment.
JMJ
Marriage involves the State, because the State discovered a way to tax the practice. There is no other reason.
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