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Religious Tolerance logo

An essay about the type of democracy in the U.S.

Part 2: Two conflicting views about what type
of democracy exists in the United States, and
how this influences same-sex marriage bans.

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This topic is continued from an earlier essay

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opposing hand gesturesOpinion 2: The U.S. is a constitutional democracy; the state laws and constitution must not violate the U.S. Constitution:

Opinion 2: Almost every U.S. constitutional expert believes that the United States is a "constitutional democracy." That is, the highest law in the country is the U.S. Constitution. Due to the 10th Amendment cited above, state legislators are free to pass any laws that define who can marry, and voters can amend the state constitution as they wish to define who can marry and who cannot -- as long as their definition doesn't conflict with the U.S. Constitution.

Examples of this belief are:

  • Excerpt from the ruling in by the 10th U.S. Circuit Court of Appeals in Awad v. Ziriax 670 F.3d 1111, 1132 during 2012:
  • "The [U.S.] Constitution does not permit either a state legislature or the state’s citizens through a referendum to enact laws that violate constitutionally protected rights. ... While the public has an interest in the will of the voters being carried out ... the public has a more profound and long-term interest in upholding an individual’s constitutional rights [under the federal Constitution]." 10

  • The National Conference of State Legislatures wrote that:

    Utah's provision [banning same-sex marriage] was ruled unconstitutional by a federal judge in December 2013. In January 2014, a federal judge [also] ruled Oklahoma's ban to be unconstitutional. In February 2014, federal judges in Virginia and Texas ruled their ban unconstitutional. In March 2014, federal judges in Michigan ruled their ban unconstitutional. All five cases are pending appeal [to applicable U.S. Circuit Courts of Appeal]. 11

  • The Legal Information Institute (LII) at Cornell University wrote:

    "In Romer v. Evans, the [U.S.] Supreme Court struck down a state constitutional amendment which both overturned local ordinances prohibiting discrimination against homosexuals, lesbians or bisexuals, and prohibited any state or local governmental action to either remedy discrimination or to grant preferences based on sexual orientation. ..."

    "Animus against a class of persons was not considered by the Court as a legitimate goal of government:

    '[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'

    The Court then rejected arguments that the amendment protected the freedom of association rights of landlords and employers, or that it would conserve resources in fighting discrimination against other groups. The Court found that the scope of the law was unnecessarily broad to achieve these stated purposes, and that no other legitimate rationale existed for such a restriction." 12

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Surprisingly, even though the two beliefs completely contradict each other, both are true -- sort of:

  • The liberal position is correct. "The Supremacy Clause is the provision in Article Six, Clause 2 of the United States Constitution that establishes the United States Constitution, federal statutes, and treaties as 'the supreme law of the land.' It provides that these are the highest form of law in the United States legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either a state constitution or state law of any state." 13

  • The conservative position also has validity: Ultimately, the vote of the people in each state is the "supreme law of the land." That is because the public elect both state and federal representatives and senators. The latter have the power to create and pass federal constitutional amendment that become the supreme law of the land if they are ratified by a sufficient number of state legislatures.

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Webmaster's opinion (Bias alert):

All indications are that Opinion 2 is correct and that the United States is a constitutional democracy. Otherwise, we would not have heard about many hundreds of rulings by the federal courts -- including District Courts, U.S. Circuit Courts of Appeal, and the U.S. Supreme Court down through the years -- in which courts have declared a federal law, a state law, or an amendment to a state constitution to be invalid and void because it violates the U.S. Constitution.

Over the past five decades, there have been two very important rulings of this type involving the redefinition of marriage. Both made a major improvement to the lives of certain loving, committed couples:

  • During 1967 when the U.S. Supreme Court legalized interracial marriage across the U.S. in Lawrence v. Virginia, and

  • During 2013-JUN when that court declared Section 3 the federal Defense of Marriage Act to be unconstitutional and void in Windsor v. United States. This made benefits and protections that were previously restricted to legally married opposite-sex couples available to legally married same-sex couples as well.

In both cases, the Supreme Court found that laws violated the equal protection and due process clauses of the 14th amendment of the U.S. Constitution.

There are currently approximately 70 lawsuits in federal District Courts or federal Circuit Courts of Appeal seeking the legalization of same-sex marriage in a state. All but one are based on a perceived violation of the 14th Amendment. One lawsuit, filed by the United Church of Christ in 2014-APR is the exception. It is based on both the 14th and 1st Amendments because of the plaintiffs' freedom of religion concern.

The plaintiffs probably all hope that their case will be appealed to the U.S. Supreme Court and that the Court will issue a ruling in their case so that same-sex marriage becomes legal across the entire country. As of 2015-JAN-08, the high court has received five appeals -- one each from five states: Kentucky, Louisiana, Michigan, Ohio, Pennsylvania, and Tennessee. In mid-January, the nine Justices of the U.S. Supreme Court decided to grant certiorari by accepting all four appeals. They will hold hearings on the cases during 2015-APR, and issue a ruling in late June or early July. Their decision could run all the way from legalizing same-sex marriage across the entire country, to banning it entirely, with several other intermediate rulings possible.

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Resolution of the conflict:

As of 2015-FEB, the political conflict continues. It has a chance of being resolved if both sides were to engage in dialogue. Unfortunately, dialogue would require everyone involved to cease defending their position at all costs, to discuss the conflict in objective terms, and to commit themselves to seek the truth -- even if their cherished position goes down in flames to defeat. This is not an easy task. There seems to be no desire to dialogue. And so it seems that the conflict will continue -- and misinformation will continue to be widely distributed -- for the foreseeable future. Many feel that the population of the U.S. deserves better representatives in Congress and state Legislatures.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Judge John G. Heyburn II, "Memorandum Opinion and Order," Federal District Court for the Western District of Kentucky, 2014-JUL-01, at: http://www.scribd.com/
  2. "cchretien," "Activist Judge Attempts to Redefine Marriage in Kentucky," National Organization for Marriage, 2014-JUL-03, at: http://www.nomblog.com/
  3. Peter Dujardin, "Law professors bolster Herring's same-sex marriage stance," Daily Press, 2014-APR-18, at: http://articles.dailypress.com/
  4. Linda Monk, "Amendment X: Rights reserved to states or people," National Constitution Center, undated, at: http://constitutioncenter.org/
  5. The web site from which this quotation originated is no longer on line.
  6. "Gay advocates want activist judges to strike down Tennessee’s constitutional ban on gay marriage," Tennessee Christian News, 2014-FEB-12, at: http://tnchristiannews.wordpress.com/
  7. David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at: http://dailycaller.com/
  8. "Kentucky Marriage Ruling Shows Disregard for Rule of Law," Family Research Council, 2014-FEB-12, at: http://www.frc.org/
  9. Brian Brown, "National Organization for Marriage Condemns the Decision by a Federal Court to Strike Down a Component of Kentucky's Laws Regulating Marriage," National Organization for Marriage, 2014-FEB-12, at: http://www.nomblog.com/
  10. Ben Winslow, "Utah AG will defend same-sex marriage ban, even if U.S. AG says don’t," Fox 13 News, Salt Lake City, 2014-FEB-25, at: http://fox13now.com/
  11. "Defining marriage: State Defense of Marriage Laws and same-sex marriage, National Conference of State Legislatures, 2014-MAR-16, at: http://www.ncsl.org/
  12. "CRS Annotated Constitution: Fourteenth Amendment,,," Legal Information Center, at: http://www.law.cornell.edu/
  13. "Supremacy Clause," Wikipedia, as on 2014-DEC-01, at: http://en.wikipedia.org/

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Copyright © 2014 & 2015 by Ontario Consultants on Religious Tolerance 
Originally written: 2014-MAY-08
Latest update: 2015-FEB-04
Author: B.A. Robinson

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