U.S. Constitution
Can a U.S. civil right be subject to a popular vote? (Pictured: Citizens sign a copy of the U.S. Constitution.) REUTERS

The California Supreme Court ruled on Thursday that supporters of Proposition 8, the 2008 ballot measure that banned same-sex marriage in the state, can defend the measure in court themselves when the state refuses to do so.

In a post-election challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so, Chief Justice Tani Cantil-Sakueye wrote in the ruling.

And so Proposition 8 will receive a robust defense, as Family Research Council President Tony Perkins said in a statement praising the court's decision. But if our courts have any respect for the 14th Amendment, the spirit of the Constitution and the intent of the Founding Fathers, they will overturn Proposition 8 when it comes to them.

Constitutional Republic, Not Direct Democracy

Opponents of same-sex marriage argue that such an important social issue can only legitimately be decided by popular vote, and that anything else -- a judicial ruling, as in pre-Proposition 8 California, or a legislative vote, as in New York -- is undemocratic.

These opponents like to cite the statistic that voters have rejected same-sex marriage in every state in which it has been put to a popular vote.

This is true. It is also irrelevant.

In a country like the United States, which is built on democratic principles, this is not a statement to be made casually. But it is a fact that popular votes are not the be-all and end-all of government: far from it. The Founding Fathers/Framers explicitly rejected direct democracy for fear of mob rule. This is why we are governed by elected officials and not by referendums, and it is why popular votes are filtered through institutions like the Electoral College.

The Founding Fathers rejected direct democracy because in such a society, as James Madison wrote in Federalist Papers 10, a common passion or interest will, in almost every case, be felt by a majority of the whole ... and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

With the Constitution, the Founding Fathers hoped to reconcile the principle of popular governance with the principle of inalienable rights. When the Constitution and popular opinion clash, the Constitution reigns supreme.

Think about it: if parts of the Constitution can be discarded by popular vote, why don't we hold a referendum on gun ownership and ban all firearms if the people vote to do so? And why would conservatives rally around popular votes as a way to disregard equal protection but reject them as a way to disregard the right to bear arms? If you can pick and choose which parts to accept and which parts to reject because the majority wants to, the Constitution has no meaning.

This is the fundamental point that opponents of same-sex marriage miss when they say, as former Speaker of the House Newt Gingrich did in 2009, I don't think there is equal protection. The people of California don't believe there is equal protection. What people have said consistently is, they believe in sustaining a 3,000-year tradition.

Equal protection exists whether or not Newt Gingrich and the people of California think it does. It exists because the 14th Amendment, ratified in 1868, says it does: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Founders on Majority Rule

Madison devoted most of Federalist Papers 10 to the dangers of factions, which he defined as a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

The fundamental principle expressed by Madison and enshrined in the Constitution is that, while it is essential for the people to be able to elect their representatives in government and to vote on key issues, the majority is not right just because it is the majority.

Checks and balances, John Adams argued, will scarcely avail without an explicit admission of some limitation of the right of the majority to exercise sovereign authority over the individual citizen. ... That the desires of the majority of the people are often for injustice and inhumanity against the minority is demonstrated by every page of history.

This principle is at the heart of the Constitution itself, and it has been expressed by politicians and philosophers of various ideological stripes:

John C. Calhoun, on the U.S. Senate floor: No free system was ever farther removed from the principle that the absolute majority, without check or limitation, ought to govern.

John Stuart Mill, On Liberty: There needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them ... and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence.

Alexis de Tocqueville, Democracy in America: I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything. ... A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority.

If a faction consists of a minority of voters, Madison wrote, a popular vote is all that is needed to prevent oppression. But if a faction consists of a majority, as the faction that would outlaw same-sex marriage does, the form of popular government ... enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. ... The majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.

When it comes to strict constructionism and adherence to the original intent of the Founding Fathers, as is a popular conservative mantra, it doesn't get much clearer than that.

Marriage Is a Fundamental Right

Opponents of same-sex marriage argue that marriage is not a right and that as such, denying it to same-sex couples is not a violation of the equal protection clause. But it takes a tortured argument to get around the inequality inherent in letting some couples but not others marry.

In the landmark 1967 Loving v. Virginia decision, which overturned anti-miscegenation laws, the Supreme Court called marriage one of the basic civil rights of man, fundamental to our very existence and survival and one of the vital personal rights essential to the orderly pursuit of happiness by free men. And if, by that precedent, marriage is a basic right, how can it be constitutional for a state to deny that right on the basis of sexual orientation, any more than it could deny it on the basis of race?

Some opponents also argue that, because everyone has the right to marry someone of the opposite sex and no one has the right to marry someone of the same sex, there is no inequality. But this is exactly the argument Virginia made in defending its anti-miscegenation law -- that there was no discrimination if both white and black people were forbidden to marry someone of another race -- and the Supreme Court squarely rejected it.

Other opponents make perhaps the most offensive argument of all: that if same-sex marriage were legalized, pedophilia and bestiality would have to be legalized, too. The difference is that pedophilia and bestiality involve victims, while same-sex relationships hurt nobody. Nobody is raped, denied liberty or otherwise harmed when same-sex couples are allowed to marry, and comparisons to violent acts like pedophilia and bestiality are based entirely on hatred.

The let the people vote on it argument is a cop-out: the same cop-out used by supporters of anti-miscegenation laws and even of slavery (see: Bleeding Kansas and the popular sovereignty argument).

A Long and Shameful History

Today, it is difficult to find a person who will argue openly against interracial marriage. But before 1967, 41 of the then 48 states had anti-miscegenation laws at one point or another -- and the arguments used to justify those laws are disturbingly similar to the arguments now used to justify anti-same-sex marriage laws.

In the words of its opponents, interracial marriage was unnatural and ungodly. For instance, in 1959, in a ruling upholding the prosecution of an interracial couple in Virginia, County Circuit Court Judge Leon Bazile wrote, Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement, there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Many years earlier, in 1912, U.S. Rep. Seaborn Roddenberry, D-Ga., gave a virulently hateful speech on the House floor in favor of a constitutional amendment banning interracial marriage. Intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit, he said. It is abhorrent and repugnant to the very principles of Saxon government. It is subversive of social peace. It is destructive of moral supremacy, and ultimately this slavery of white women to black beasts will bring this nation a conflict as fatal as ever reddened the soil of Virginia or crimsoned the mountain paths of Pennsylvania.

If this type of apocalyptic rhetoric sounds familiar, it is because same-sex marriage opponents like Pat Robertson and Rick Santorum have spewed it all over the public discourse of the 21st century -- all the while trying valiantly to make it seem different from the discredited rhetoric of anti-miscegenationists.

The history of the United States is full of attempts to use God's will as a justification for oppressing whatever minority the majority happens to dislike at the time. But despite the clear religious influences in the Constitution, e.g., endowed by our creator, the Founding Fathers were crystal clear that the rights to life, liberty and the pursuit of happiness could not be abridged under any circumstances whatsoever.

To the people who claim that the question is it godly trumps the question is it constitutional, I suggest moving to a country where religion is held above the rule of law. How about Iran?

Certain Inalienable Rights

The point is, we've seen this fight before. And yet, opponents of same-sex marriage are still trying to argue that their cause is somehow different from the cause of anti-miscegenation activists.

It isn't. The principle is exactly the same: states have no right to pass laws that ban marriage for a certain segment of the population, no matter how many people support such a ban. There are things on which there can be no popular vote.

Conservatives may not like that the Constitution requires equal protection for same-sex couples, but they're the ones who always talk about strict interpretation and not legislating from the bench.

If conservatives want to change the Constitution, there is a process for doing that. But until they go through that process and get 38 states to ratify an amendment saying that all men are not, in fact, created equal, their efforts to ban same-sex marriage -- whether by referendum or legislative vote -- will be unconstitutional.