Prop 8 majority rule? No, ‘We do NOT put the Bill of Rights to a vote?’

by CynthiaYockey on August 11, 2010

By arguing that the majority vote in favor of Prop 8 in California should stand despite the decision that it is unconstitutional, Maggie Gallagher and the National Organization for Marriage have managed to make a large number of social conservatives forget their love of the Constitution — or inadvertently, they have exposed that social conservatives either are unclear on “unalienable rights,” and liberty, or they’ve had it with the separation of church and state and the horse it rode in on. None of those possibilities puts social conservatism in a flattering light.

Ted Olson makes it clear: “We don’t vote on the Bill of Rights.”

The people who are harumphing about majority rule should consider whether they always will be a member of that lucky, more-equal majority that bosses everyone else around and always gets its way. KEEPING THE MAJORITY FROM TRAMPLING MINORITIES IS WHAT THE JUDICIARY IS SUPPOSED TO DO!!! It is NOT judicial activism.

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C August 11, 2010 at 4:02 am

Re: the whole ‘socially conservative’ thing, I thought that Christopher Hitchens made two very good points. The first was that, given that marriage is a form of ‘normalization’ (you know, marriage, shared home, kids someday…) its pursuit by gays should be something supported by conservatives. The other was that it would stop gays trying to be happy by marrying heterosexuals, which has been a horrible source of unhappiness in the past.

A modern story illustrating this was that gay Egyptian Muslims were – given that Islam forbids homosexuality but allows polygamy – marrying in a similar manner, that is, a gay man would ‘marry’ two lesbians to keep the scimitar off their necks.

Just thought I’d kick these reflections your way.

Liz August 11, 2010 at 9:12 am

Well, of course. It’s like in the Republic of Ireland, where they’re considering a Civil Partnership Bill (I know, I know, stay with me here) and the Catholics and rabid Evangelicals are whining that the courts and parliament are doing this, not the voters. Oh, and that government workers, paid for by the taxpayers, shouldn’t have to perform these unions.

What on earth would they do if the majority voters (or individual states) decided to ban opposite sex marriage? Unless it would be full, if grudging acceptance and counter protests, and *not* running straight to the courts, they don’t have a leg to stand on. Advocates of democratic votes have to accept that it would work both ways.

CynthiaYockey August 12, 2010 at 12:51 am


It appears that straight people believe their rights are unalienable, but IF gay people have any rights at all, these rights are indeed alienable by majority vote.


I R A Darth Aggie August 11, 2010 at 11:43 am

“We don’t vote on the Bill of Rights.”

The legislatures of the 13 states certainly did. Could have rejected, them, too. Could be repealed or revised, even today. The Constitution and many of the amendments thereof where written on fine parchment by a steady hand, with a quill pen and an inkwell.

Not etched in stone, and delivered whole and intact by a prophet. See also: 18th and 21st Amendments.

CynthiaYockey August 12, 2010 at 12:55 am

I R A Darth Aggie,

You really are reaching to avoid connecting with the whole unalienable rights gestalt.



To the commenter “Joe” with the fake e-mail address and URL: you must provide YOUR real e-mail address for your comments to be eligible for publication. It will not be published or sold, but you must provide it.

Amy August 12, 2010 at 1:23 am

I know you’ve talked about this before, but would you mind explaining again? I’ve heard/read so many arguments in the last few days about this. I have stated that I don’t have an issue (anymore, lol) with same sex partners being married but I’ve recently heard Ed Morrissey on Medved talking about how government should not be involved in “marriage” at all.

I do have a prob with the judge overturning the will of the people.

For the record I am a fiscal conserv with only one social conserv issue…I’m anti-abortion but pro-gay marriage. I approached my only RL gay friend about this issue yesterday ( I asked him if he was legally allowed to, would he get married) and he told me about how he feels about his partner (they are in it together, no matter what, and they have been through some tough stuff) and some friends of theirs who were “married” who fought over money all the time. All I could say is, both sounds like marriage to me.

CynthiaYockey August 12, 2010 at 2:00 am


Actually, judges are supposed to overturn the will of the people when they are prejudiced or filled with malice toward a minority. The system is working.

Regarding whether government should be involved in marriage, just this week I had a horrifying insight into why the religions driving the gay equality debate WANT to get the government out of marriage. I’m saving it for my book, but for now, rest assured, we really, really, REALLY need for the government to stay involved in marriage. All we are asking is for the federal right to be allowed to choose our spouses on the same bases straight people get to use: love and sexual attraction.


Amy August 12, 2010 at 3:23 am

Not tot tell you your business, but I think you should reach out to Medved’s show. He’s really open minded but decidedly anti same sex marriage. He gets a lot of callers opposing his opinions and he welcomes them…it would be a great forum for you, but (and I know you know this, but I am rather protective) do your homework first.

Or maybe wait for the book, then you could do two birds with one stone, educate and promote the book.

CynthiaYockey August 13, 2010 at 1:46 am


I think that’s great advice when I’ve gotten the book written — thanks!


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