Vote against the marriage ban

Opponents of gay marriage or civil unions like to pretend that the courts represent an “unelected, tyrannical threat” against the will of the people when they strike down laws passed by elected legislative bodies. They also like to pretend that the Founding Fathers would have agreed with them.

These claims are simply untrue, because the Founding Fathers addressed these very complaints before the Constitution was even ratified. The Federalist Papers, written by James Madison, John Jay and Alexander Hamilton, laid out the case for how the federal government would and should work, and why. The folks who make the above false claims often claim they are for “original intent” when interpreting laws. If that’s the case, numbers 78 to 83 the Federalist Papers represent THE Founding Fathers’ original intent of the role of the Courts.

Passages in the Papers make clear that the role of the Courts is to interpret laws passed by the Legislature for the Constitutionality. Consider Federalist 78:

“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

Or Federalist 81:

“I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.”

The Fathers envisioned this role for an independent court system specifically because they completely trusted neither the Legislature nor the will of the people. With regard to the Legislature’s ability to interpret the constitutionality of its own work, consider again Federalist 81:

“From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges.”

The idea that the Fathers had total faith in the will of the people ought to be dismissed by the existence of the Electoral College and of an unelected Senate. Federalist 78 makes clear that the fathers were wary of the “will of the people” when it came to passing legislation:

“But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.”

Federalist 78 continues,

“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

The second passage is especially prescient considering an article about gay Republican staffers that appeared in the Washington Post on October 20, which quoted one Capitol Hill staff member as saying,

"You have to separate the marketing from the reality. The reality is, these members are not homophobic. For the most part, they're using this marketing to play to our base and stay in power. They have to turn out the votes,"

The Founding Fathers were ahead of their time, because these passages could easily be applied to the wedge issues – such as gay marriage bans and flag burning amendments today – that are designed by politicians, political operatives, and interest groups (designing men practicing their arts) to anger people into voting their way. Indeed, when it comes to wedge issues and other laws designed to influence social behavior, Federalist 78 states eloquently,

“It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.”

The Founding Fathers are warning elected officials against wedge issues: We created the courts specifically to protect against your attempts to rile up the public and gain political support with wedge issues that needlessly discriminate against a minority group. If you can’t explain why your law is Constitutional, then don’t bother.

Those who claim it’s a “slippery slope” towards incest, polygamy, and the like ignore the fact that it was codifying marriage into law in the first place that greased the slope. If hetero married couples (like me) didn’t have any legal benefits, there would be no reason for homosexuals or anyone else to demand the same – those really would be “special rights”. Marriage is a private matter, but if you're going to legislate on it you have to treat everyone the same. There is literally no Constitutional reason to legislate against gay marriage and the courts are right to strike down such laws based on the intent of the Founding Fathers themselves.