Friday, July 16, 2010

Court vs People

Last week, a federal district court judge in Massachusetts decided that DOMA, the national law defining marriage as between a man and a woman, was unconstitutional...

Last week, a federal district court judge in Massachusetts decided that DOMA, the national law defining marriage as between a man and a woman, was unconstitutional. Today, the U.S. Court of Appeals for the D.C. Circuit decided in a narrow 5-4 ruling that the D.C. Board of Elections and Ethics was justified in blocking citizens from voting on the definition of marriage because, if passed, it would discriminate against same sex couples under the DC Human Rights Act. This is another example of judicial tyranny -- this time denying the right, guaranteed under the DC Charter, of citizens to vote on policy affecting the very foundation of society.

Every time citizens have had a chance to vote on the definition of marriage they have affirmed the reality of marriage as a union of a man and a woman. By the way, the initiative in question had the same wording as California's Prop 8 and Maine's Question One. The attorneys representing both the proponents and the citizens of DC (59% of which support "traditional" marriage) are considering an appeal to the U.S. Supreme Court. As you recall, it was the Washington, DC same-sex "marriage" law that forced Catholic Charities to give up providing services to children who had been deprived of their mothers and fathers. If they continued, they would have been forced to place children with same-sex couples. When a child is deprived of his or her mother and father, a man and a woman are the best people to stand in for the people who were unable to fulfill their responsibilities to the child. To intentionally deny the child of the experience of being cared for and raised by a man and a woman in these circumstances is a second privation, and an assault on the dignity of the child. This is common sense and the teaching of the Church.
Catholics for a Common Good


Anonymous said...

Question: Is there any issue that's really, really important to you that you believe should NEVER be put up to the vote of the majority of Americans?

Gibbons in SF said...

My answer is yes, but I recognize that the world does not revolve around me. I recognize that something “really, really important to me” probably would be really important to others as well, who may have a different take on the matter. The DC court has said those people don’t matter.

Anonymous said...

you're arguing against yourself. some things should not be put up to the vote of the majority. we agree on that. the question is what are those areas of life that should not be put up to the vote of the majority? what if the majority voted that having more than 2 children is punishable by crime? wouldn't you want the courts taking away that vote? of course you would.

Gibbons in SF said...

And some things should not be decided by a judge.

When the question involves inalienable natural human rights (the right not be enslaved, the right not to be killed by abortion, etc.) the question should (your word) not be put to a vote—unless the unalienable right is already being violated, and the aim of the referendum is to restore it. (A repeal of Roe v. Wade is a good example). But it should also NOT be decided by a court—unless (paradox) the court upholds the unalienable right (the opposite of what happened in Roe v. Wade).

But the key word is "should." Suppose the court rules one way, and the people another? What then becomes of another natural right, the right to self government? That tension and potential paradox is right there in the Declaration:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

Now, supposing in a given case that the court seems to be right and the people wrong. How then do we resolve this conflict without derailing self-government? My answer (and, I believe, the Constitution’s answer of the Amendment process and Constitutional Convention) is that we finally have to recognize the people as sovereign.

One resolves the conflict by making one’s case to the people, and trusting in their reason and good sense to prevail. That takes time. It’s not easy or fast but there’s no other way.

However, in the case we are discussing all this analysis is unnecessary, because the question of same-sex “marriage” does not involve an unalienable right. The issue is whether the relationship of two persons of the same-sex will be recognized as Marriage by the community. And that is obviously not the recognition of an “inalienable” right, but the conferring of a civil right, which is done by consent of the community.

The only right demanding recognition in this context is the right of two persons of the same sex to spend their lives together, and that right is already recognized—in fact it is so deeply recognized and respected as an inalienable right that no one even gives it a thought.