I keep going back to James Madison
I've blogged this before, but I recently looked up The Federalist #10, written by James Madison in 1787 for a speech I was giving and it struck me once more how strongly it argues against initiatives like Prop 107 and similar marriage amendments in other states. For me, it all boils down to what Madison wrote 219 years ago (emphasis mine):
Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.
Despite what we may believe, America was never meant to be a pure democracy. We are a democratic republic (hence our representation in Congress) and we have a Judicial Branch that was created exactly for the purpose of combating the above. Our founding fathers recognized that a strict majority rules could (and has) become mob rules.
In light of this, can someone please explain to me how things like Prop 107 can be even remotely constitutional? How is this not exactly the kind of thing James Madison argued against when he worried about "the superior force of an interested and overbearing majority" overruling "justice and the rights of the minor party."
Do I think James Madison had same-sex couples in mind when he wrote this? Of course not. He also didn't have people of color or women in mind, but we have since decided that if his arguments were true for white men, they were no less true for women and people of color. I don't think we can seriously argue that the fact that James Madison didn't have Prop 107 specifically in mind means that his argument doesn't apply.
So let's look at Prop 107 and similar amendments that not only redundantly define marriage as between a man and a women in states where there are already statutes in place that do just that, but preclude states, counties, cities, and towns from setting up or recognizing anything that would grant similar rights and responsibilities to unmarried couples, often taking away (as would be the case in Arizona) existing rights, benefits, and domestic partner registries.
One of the main arguments against same-sex marriages, civil unions, or domestic partnerships of any kind is that these relationships are inherently sinful. The problem is, for the purpose of making civil law, this is irrelevant. Even if the majority believes this to be true, that is not a basis, according to James Madison, to make civil law that adversely affects a minority population. There are lots of things Christian doctrine regards as sinful that are perfectly legal. Two of the Ten Commandments instruct us to honor our father and mother and to not covet our neighbor's "house... or anything that belongs to [our] neighbor." Parents are often dishonored and no one is arrested or fined for it, and coveting my neighbor's belongings is not only legal, it's encouraged in our capitalist system. How else is Toyota going to convince me to shell out a lot of money for an SUV unless they get me to covet one?
But when does dishonoring my parents or coveting my neighbor's 4Runner become a matter for civil laws? When my dishonoring takes the form of abuse or my lust over my neighbor's 4Runner means I hotwire it and take it for a joy ride. Basically, my American right as stated in the Declaration of Independence for the "pursuit of happiness" ends where other people's rights begin. My legal right to (sinfully) dishonor my parents ends when it harms them. My legal right to (sinfully) covet my neighbor's SUV ends where their ownership of said SUV begins.
In terms of laws that grant protections and rights (or conversely, bar protections and rights) to couples to name each other as next-of-kin, to visit each other in the hospital and make medical decisions for each other, to buy property together with rights of survivorship, my right to decide which relationships are worthy of these protections ends with my relationship. I don't get to decide for my brother or my next-door neighbor or the guy at my church or the stranger in a different city who their significant other is, and I don't get to limit the protections I receive to only people in relationships I approve of.
This is what Madison was arguing. That even if most of my friends and I all think same-sex relationships or other arrangements that don't involve civil marriage are sinful, the test for whether it makes good civil law isn't my interests, it's "justice and the rights of the minor party." The only justification for barring the minor party from their right to the pursuit of happiness (defining their own relationships and having those relationships protected in cases of illness or death of one partner) would be if their relationship inflicts some sort of tangible harm on someone else. Again, my (sinful) coveting of my neighbor's SUV is legal because it doesn't inflict on my neighbor's rights. My stealing my neighbor's SUV is illegal because it does inflict on his rights.
So exactly how does the infamous and oft-cited Adam and Steve entering into a covenant relationship and wanting to visit each other in the hospital, make medical decisions for each other, get health benefits for each other inflict on anyone else's rights? What business is it of anyone other than Adam and Steve? And how does Bob and Mary's decision to forgo a civil marriage (because they are living off Social Security, including Mary's deceased first husband's, and they would lose that if they married each other) inflict on anyone else's rights? Does Mary's first marriage become any less valid because she found love a second time?
I would like to hear one argument based on solid evidence that these relationships inflict on the rights of others. I would like to hear one example of a tangible harm these relationships create for anyone else. Because absent that, according to founding father James Madison, we're basing our decision on the wrong thing, even if it is favored by the majority.
For me, it all goes back to James Madison. Majority rules was never intended to be the blanket system for our country and we have no business voting on laws that inflict harm on others just because we don't like what they're doing or think their behavior is sinful. Absent any real harm to others, everyone should have a legal right to the pursuit of happiness, sinful or not. And considering the real, tangible harm that will come to families that will be affected if Prop 107 passes, "justice and the rights of the minor party" is exactly what's at stake.