[COLOR="Green"]I should have known that you guys would be more fascinated by the nitty gritty of gay marriage and abortion, rather than the constitutional issues which my initial post spotlighted. I also should have known that Tom S. would use my analysis to bash the GOP. Have you gone off the deep end, my man?
Still at the risk or boring you all, I thought I would share a private (and IMHO very interesting) exchange I just had with an astromarter who shall remain anonymous:[/COLOR]
> Jim:
>
> Being that the US is a republic and not a democracy is it not up to the legislators/lawmakers to uphold the constitution regardless of the will of the people?
>
> If not allowing gay marriage were proven to violate rights stated in the constitution it wouldn't matter if 80 % of the people did not want it... right?
>
> ... but I'm not saying that not allowing gay marriage "has" violated any rights... just using this as an example.
Jim’s Reply:
Lurking are you?
First the easy part of your inquiry:
Legislators do swear to uphold the constitution. Thus they should not pass a clearly unconstitutional law regardless of the will of the majority. A state legislature should not pass a law establishing "Christianity" as the state religion for example even though in many states such a law would have majority support. It gets grey when a legislature passes an arguably or potentially unconstitutional law. I don't think the legislators have violated their oath in such a case, even if the court comes in later and does its proper duty and strikes the law down. Provided it was a close case.
Now the tricky part:
"If not allowing gay marriage were proven to violate rights stated in the constitution it wouldn't matter if 80 % of the people did not want it... right"That is absolutely right. But the use of the word "proven" is not precise enough for me. Some rights are obvious from the plain language of the Constitution. Some rights are necessary to support other rights which are plainly stated in the constitution. For example, Free speech is a plain and clear right according to the First Amendment. My right to access the internet and have this cyber conversation is a right that is not expressly stated, but which is necessary to preserve my right to free speech. I would take these rights as "proven" but we have already started to interpret things.
What if a right is simply not there? I think that the US Supremes "found" a right in Griswold and Roe that was not there and did not need to be there. This was the right to privacy which was said to be found in the penumbra (love the astro term!) of the Bill of Rights. This “right” supported the federalization of abortion and birth control matters. In this case, I think the court went too far. So I would re-phrase your correct statement above to an equally correct statement:
If no right to abortion exists in the Constitution, it is not the Court's job to put one there. It is the legislature's job to create new rights, subject to the will of the people, the veto, and a constitutional challenge. That was my original point in the thread by the way.
Of course abortion and gay marriage is not the same thing, and different rights may apply. I bring up abortion, because I have had time to read and analyze those cases over the years. I know next to nothing about the arguments gay marriage proponents are advancing.
Which gets us to the final point. I am not sure what constitutional language was actually relied upon when the MA supreme court found a right to gay marriage in that state. If that right is "proven" to be in a constitution, you are absolutely correct. If that right was placed there by the judges, I think they way overstepped their proper boundaries.
I am all for gay marriages by the way. Live and let live. My post proceeds from the presumption that there is no applicable constitutional right to such a marriage, and that the judges in MA fabricated such a right. I could be wrong on this underlying premise.
Nice hearing from you!
J
