6 August 2014: A civics lesson on a living Constitution

A civics lesson on a living Constitution

A letter writer to the Denver Post wrote, “Colorado citizens voted against gay marriage. Now we have judges (who were not voted in, but appointed) making decisions to overturn this issue.”

She then asks, “What is wrong with this picture? Attorney General John Suthers is a man of the law and abides by the law passed by the citizens of Colorado.

“Laws are voted for by the citizens to protect all and not just a few.”

A question I asked myself countless times when teaching: Where to begin?

First, the writer, like so many Americans, has an erroneous conception of how our system works.  While we occasionally employ the practice of plebiscite—a euphemism for popular democracy and abhorred by true conservatives—that empowers people to overrule or act in place of its elected representatives, laws generally are enacted by majority votes of the legislature/congress and approval of the executive.

Second, under the concept of judicial review, the courts have the power to invalidate laws, whether enacted by a legislature or voted by the people, which violate a state’s or U.S. Constitution.

Third, the purpose of a constitution is not to impose the popular will—zeitgeist—but to protect the minority.  Otherwise, a 51 percent majority could run roughshod over 49 percent on issues ranging from taxation to public education.

In 1954 the Supreme Court of the United States overruled its predecessor’s 1896 Plessy v. Ferguson decision that had allowed “separate-but-equal” education, noting that “separate but equal is inherently unequal.”

In 1967 the SCOTUS invalidated states’ prohibitions on interracial marriage in the aptly-named Loving case.

In 1973, the SCOTUS ruled in Roe v. Wade women have constitutional reproductive rights.

In 1996, the SCOTUS overturned Colorado’s Amendment 2 that prohibited state and local governments from passing laws to ban discrimination against gays, ruling it violated the equal protection clause of the 14th Amendment.

More recently the SCOTUS has held the Affordable Care Act is constitutional, corporations are people who, one supposes, can die and go to hell, and as such have First Amendment religious freedom that allows them to deny women who are insured through their health plans health care options.

So what’s wrong with this picture?  Nothing unless one disagrees with a decision.

With regard to Suthers’ vigorous efforts to defend the state ban, one wonders if he would’ve been as active defending southern states’ laws that forbad people of color from sitting in the front of the bus, drinking from “whites only” water fonts, and attending integrated schools.

It is rewarding to read how others are moving from the state of fear or anxiety about same-sex marriage to acceptance.  Oftentimes though, their well-intentioned advice is to be patient, to allow for the democratic process to work so to give voters the opportunity to repeal the odious amendment they voted for previously.

There are several problems with that position.  If a law is unconstitutional there can be no retraction process.  Ninety-nine percent cannot deprive one percent of its constitutional rights.

Further, Article IV, Section 1 reads, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”  If Colorado must honor the marriages of same-sex couples from other states, does that not effectively create a two-tiered society for Coloradans since the state forbids its own citizens to marry in like manner?

In his majority opinion striking down the Defense of Marriage Act, Justice Anthony Kennedy wrote, “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons.” Laws restricting benefits, he holds, “demean the couple, whose moral and sexual choices the Constitution protects.” (Emphasis mine.)

Then there’s the ethical question: How long must a suffering or deprived group endure before it sees justice.

Last week, the conservative Fourth U.S. Court of Appeals struck down bans in Virginia, South Carolina, and three other states.

“The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life,” Judge Henry F. Floyd wrote. “Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

In reaction, North Carolina Attorney General Roy Cooper has announced he’ll no longer spend—waste—taxpayer dollars to defend his state’s ban, citing the inevitability of the process.

One wishes “man-of-the-law” John Suthers were as wise and frugal as his NC colleague.

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