How Objections To Marriage Equality Decisions Are Actually Objections To The Constitution


Federal judges have overturned state bans on same-sex marriage in three states now — California, Utah, and Oklahoma — in addition to decisions by state courts in Massachusetts, Connecticut, Iowa, New Jersey, and New Mexico. The most recent rulings in Utah and Oklahoma are thorough but reach a simple conclusion: defining marriage as only between a man and a woman accomplishes nothing and only serves to discriminate against same-sex couples. The U.S. Constitution guarantees equal protection under the law, the judges wrote, so the disparate treatment of these amendments violates this principle.

Opponents of marriage equality respond to these decisions by decrying “unelected judges” who are “overturning the will of the people.” Here are a few such reactions to Tuesday’s ruling in Oklahoma.

Oklahoma Gov. Mary Fallin (R): “The people of Oklahoma have spoken on this issue. I support the right of Oklahoma’s voters to govern themselves on this and other policy matters. I am disappointed in the judge’s ruling and troubled that the will of the people has once again been ignored by the federal government.

Oklahoma Attorney General Scott Pruitt (R): “It is a troubling decision. As the Supreme Court recently noted in the Windsor case, it is up to the states to decide how to define marriage, not the federal government.”

Family Research Council’s Tony Perkins: “This activist judge is overrunning both the constitution and the rule of law in a drive to fundamentally alter America’s moral, political and cultural landscape. He is substituting his own ideology for the three quarters of Oklahomans who voted to preserve marriage in their constitution as it has always been defined.

Indiana Gov. Mike Pence (R) used his State of the State speech Tuesday to back a proposed constitutional amendment banning same-sex marriage for similar reasons, stressing that “the people, rather than unelected judges, should decide matters of such great consequence to the society.”

These statements imply that a majority vote (or a supermajority, as was the case when Oklahoma passed its ban) should supersede Constitutional protections, but that notion actually betrays the fundamental principles of the Constitution. Indeed, the founding fathers were insistent that a pure democracy with majoritarian rule would fail, which is why they instead created a republic, a representative government with checks and balances and a Constitution that is particularly difficult to amend. Here’s what some of them had to say about pure democracy:

John Marshall: “Between a balanced republic and a democracy, the difference is like that between order and chaos.”

John Adams: “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There was never a democracy yet that did not commit suicide.”

James Madison: “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Alexander Hamilton: “It has been observed by an honorable gentleman that a pure democracy, if it were practicable, would be the most perfect government. Experience has proved, that no position in politics is more false than this. The ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. Their very character was tyranny; their figure deformity.”

Though the U.S. Supreme Court has thus far stopped short of addressing the constitutionality of state bans on same-sex marriage, it has asserted that marriage is a “fundamental right.” The judges in Utah and Oklahoma have observed that by denying individuals the ability to choose who they marry on the basis of sexual orientation contradicts that right, because a right without the freedom of choice is no right at all. People may disapprove of same-sex couples marrying — though fewer do with each passing poll — but the Constitution and its judicial branch were specifically designed to protect minorities from the discriminatory whims of the majority, and in these cases, it is doing just that.

Alex Leichenger and Mike Rivera contributed to this post.