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

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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Sponsored link.

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opposing hand gesturesConflicting quotations concerning same-sex marriage in Kentucky:

  • Kentucky Federal District Court Judge John G. Heyburn II, ruling in Love v. Beshear:

"In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted." 1

  • "cchretien" at the National Organization for Marriage:

[Judge] Heyburn's ruling is a dangerous example of judicial activism gone wild in the United States.  Renegade judge after renegade judge has worked to throw out the votes of the American people who have voted to protect marriage.  Heyburn's blatant disregard for the will of Kentucky voters and lack of understanding of the intrinsic nature of marriage and what sets it apart from other unions is alarming. 2

  • Law professors A.E. Dick Howard and Daniel R. Ortiz of the University of Virginia, and Carl W. Tobias from the University of Richmond, from their brief filed with the 4th U.S. Circuit Court of Appeals in Bostic v. Rainey concerning same-sex marriage in Virginia:

"Public officials who swear to defend both [the federal and state] constitutions owe their first loyalty to the Constitution of the United States. An Attorney General is not an automaton who must blindly support Virginia law, especially when he concludes that it conflicts with the [U.S.] Constitution as the Supreme Law. 3

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Two opposing opinions about the type of Democracy that exists in the U.S.:

Areas of agreement: There is a consensus in America among both conservative and liberal legal experts that individual states have the responsibility to define who can marry within their borders. The 10th Amendment to the U.S. Constitution, which is part of the Bill of Rights, states:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 4

Marriage is not mentioned in the U.S. Constitution. Thus the federal government cannot define which couples are eligible to marry and which couples cannot marry. As a result of the Tenth Amendment, eligibility to marry is left to each state to define in their legal statutes and/or state constitution.

Areas of disagreement: There is a major conflict over whether there are any limits on how freely the states can exercise this power. The two options are:

  • The United States is a Pure Democracy where the people hold the ultimate power. That would allow each state legislature to pass marriage laws -- and voters pass amendments to the state constitution -- that define who can marry in any way that they wish, without restrictions.

    or

  • The United States is a Constitutional Democracy where the federal Constitution holds the ultimate power. Each state's definition of marriage is then required to avoid violating the federal Constitution.

Consider the two opinions:

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Opinion 1: The U.S. is a pure democracy and the people's opinions rule:

Many social and religious conservatives believe that the United States is a "pure democracy". That is, the highest law of the land is the opinion of the state legislators and the public. This means that state legislatures are free to pass any law to define who can marry, and voters can amend the state Constitution in any way that they wish, even if their definition of marriage violates the U.S. Constitution.

Expressions of this belief are:

  • During the 2014-MAR testimony of state attorney Kristin Heyse in the case DeBoer v. Snyder in Michigan's federal District Court, she defended the 2004 amendment to the state Constitution that banned all recognition of same-sex relationships. Her reason was because the amendment represented the "people's definition of marriage:"
  • "This case is ... about the state’s definition of marriage. The people’s definition of marriage that encouraged kids ... [to be] raised by moms and dads was not irrational. ... Moms and dads are important. ... Mothers and fathers are not indispensable. Kids benefit by having both." 5

  • Also in 2014, Tennessee Christian News™ stated on their web site:

    "... U.S. District Judge John G. Heyburn II struck down Kentucky’s ban against recognizing same-sex marriages performed in other states. He ruled it violates [the equal protection and due process clauses of the 14th amendment of] the U.S. Constitution’s guarantee of equal protection under the law. ..."

    " Violation of the Constitution? Where in the Constitution does it say that the federal government has the power to ram gay marriage down our throats when many states have banned such a thing? There is [no] such ... thing: the 10th Amendment [states]:" 6

    • "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

  • Tony Perkins is president of the Family Research Council. It is a conservative Christian para-church organization, which has been designated by the Southern Poverty Law Center as an anti-gay hate group. 7 Perkins commented on the same lawsuit in Kentucky, saying:

    "This ruling is another example of the deep betrayal of a judicial system infected with activist judges who are legislating from the bench.  If these judges want to change duly enacted laws passed by the people and their representatives, they should resign their life-time appointments to the bench and run for the state legislature or Congress.  Judge Heyburn is elevating his own ideology over that of three-quarters  of Kentucky voters who voted to preserve marriage in their constitution as it has always been defined." 8

  • Brian Brown of the National Organization for Marriage -- an organization attempting to ban same-sex marriage everywhere in the U.S. -- also commented in the Kentucky lawsuit. He wrote:

    "... yet another federal judge has entered the competition for lawlessness on the marriage front. ... Today's decision emphasizes the need for Congressional action to prevent our states' marriage laws from spiraling further into chaos. Congress needs to explicitly reinforce the sovereign right of the states to make their own determinations regarding marriage, and to have those determinations respected by the federal government..." 9

Three of the above four quotations refer to the same marriage case in a Kentucky District Court. Similar comments were made since mid-2013 whenever federal courts overturned state constitutional amendments or state statutes that ban same-sex marriage, as in Michigan, Oklahoma, Texas, Utah and Virginia, etc.

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

Opinion 2: Almost everyone else 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 violate 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 ruled Oklahoma's ban also 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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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 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 based on both the 14th and 1st Amendments because there is a 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.

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Resolution of the conflict:

As of 2014-JUL, the 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.

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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/

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Copyright © 2014 by Ontario Consultants on Religious Tolerance 
Originally written: 2014-MAY-08
Latest update: 2014-JUL-30
Author: B.A. Robinson

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