On Marriage Issue . . . Choose Democracy

News from Assemblywoman Alison Littell McHose
June 5, 2008
www.njassemblyrepublicans.com

In its recent editorial (reprinted in the NJ Herald), the Bergen Record commented on the California Supreme Court's decision to strike down a same-sex marriage ban - overturning a law passed by the voters of that state. The Record called this decision by four politically appointed lawyers . "democracy."

First, let's get our definitions right. Democracy is "a system of government by which political sovereignty is retained by the people and either exercised directly by citizens or through their elected representatives" (from Wikipedia). In the case of California and the same-sex marriage ban, the sovereignty of the people was overturned by four appointed members of the California Bar.

It's important to remember who gets to serve on the Court that has now set the societal precedent for the rest of us to live with. The vast majority of Americans would be barred from serving on the Court and making such decisions. First, you have to be a member of what is essentially a professional association - the California Bar. Then, you have to be politically-connected enough to get appointed. The rest of us simply don't matter.

I'm an elected member of the New Jersey Legislature - popularly elected by the people of my community - and I have essentially no say in this argument because, I'm not a lawyer, so I can't serve on a court. You have to ask yourself, just when did the law stop belonging to the people and start being the private plaything of the legal industry?

It's not that I don't see the need for judges. They have their place - but it's not as legislators. We legislators are popularly elected. We serve at the people's pleasure. We are drawn from the people - any citizen can serve, not just lawyers.

We can't all be lawyers - but all of us, each and every citizen, should be the custodians of the law. It belongs to us by grant of citizenship, it is our heritage. And the deliberative mind of people is not the Court, it is the Legislature.

Where does the law come from? What gives it its moral authority? Why do we respect and follow it? These are important questions for the health and maintenance of our society.

My inclination is to argue, like our Founders did, that it comes from God. But that offends many of the more secular members of our modern society. So where then? Is it tradition? But judicial activism sweeps away tradition, finds new meanings where they didn't exist before, and so thoroughly undoes tradition.

So what gives the law its moral authority - why we respect and obey it? Brute force? The threat that a man with a gun will come to arrest you, a prosecutor take away your freedom?

No. It comes from the consent of the governed. In our democracy we debate an issue, we have a vote, and then we humbly accept the will of the people.

We protect the views of the minority, while following the wishes of the majority, because we never can tell when we will be in the minority position. This view may go against those who see us as monolithic blocks of units, but those of us who know people understand that we are a more subtle tribe than this - that our identifications and loyalties cannot easily be jammed into those neat blocks designed by on-high.

Same-sex marriage is a difficult issue. Changing marriage from a tradition-based institution to one based simply on contract opens the door to a host of possibilities and problems. Overturning two thousand years of tradition, erasing the settled order of things, is a great leap into the unknown. We would not know the consequences of such an action for at least a generation - and would likely not be able to undo then, what was done.

For those reasons, we need to do this like a democracy. Let's have the respectful debate, take the vote, and then humbly abide by the will of the people. It's not right to silence the people by appealing to a handful of unelected, unaccountable political appointees - not right to compel the people, against their will, to obey or else.

We can have the debate again next year, and the year after, and the year after that. That's the beauty of democracy. We get to speak and tell our side of things. We get to convince. And that's how an issue like this should be handled. The democratic way.

And if the proponents of same-sex marriage are never able to convince the majority of their argument, they will, by the grace of their argument, form bonds of understanding and commonality. The fact that the Equal Rights Amendment did not become law did not retard the progress of women.

Ignoring the will of the people - overturning it - essentially telling them their votes don't matter, that the judges are the fail-safe of the establishment and you'll get the world we give you, is really no way to run a country. Especially ours, which seeks to proselytize democracy to other nations. It is a turn-off, which leads people to tune-out, lose respect for the law, and question it moral authority.

Choose democracy.

Assemblywoman Alison Littell McHose (R-Sussex, Morris, Hunterdon) is the sponsor of ACR-120, legislation to put the definition of marriage on the ballot for the people of New Jersey to decide.

back to Editorials