Opinion |

Op-Ed: Life, liberty and the pursuit of marriage

Posted on Thursday, November 5th, 2009, 12:23 am

Same-sex marriage advocates may be heartbroken over the repeal of Maine’s gay marriage law on Tuesday. It’s understandable. Nonetheless, marriage shouldn’t have been subject to a vote.

With an election victory in hand, foes of same-sex marriage have won the popularity contest. It’s no surprise. A vote on gay rights may as well have been tallied by census: If the population older than 60 is greater than the population younger than 30, gay marriage loses. With its resistance to jobs and culture, Maine has made a fine export of its young people.

The gray hairs won, and honestly, it’s for the best. Not because our state’s middle schoolers will be protected from hearing about gay people — a promise made by church-going parents who apparently never listen to their children speak. No, the rejection of gay marriage by referendum is for the best because it opens up a challenge on constitutional grounds, the method our Founding Fathers designed to answer these kinds of questions.

Just as individual liberty can’t be dictated by mob rule, as it was on Tuesday, it also can’t be legislated. The United States is founded on the notion that liberty is the default setting for humankind. All laws extend from this principle and are intended to protect liberty. Or, as the Bill of Rights puts it, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The right of any person to marry whomever they choose cannot be given to them by Sen. Al Diamond, nor taken away by a 53 percent majority. The right is already assumed by the Constitution: I’m already free. What remains is only for the Constitution to remove barriers to my freedom: in this case, laws against anyone who wants their marriage to be considered equal to the marriages of others, gay or straight.

The interpretation of the Constitution can only happen in the judiciary. Hence, the common conception that “activist judges” are subverting democracy. It’s totally true. Judges determine when a majority that runs rampant and forces its will upon others by way of the ballot box or new laws has violated the rights of a minority.

Historically, American hysteria-driven crusades have sought to limit the liberty of people whose liberty caused no harm: Japanese citizens thrown into camps, blacks and women denied the right to vote, and Native Americans relocated. The law, under democratic guidance, has erred on the side of legal discrimination against women, the Irish, Germans, blacks and the immigrant du jour. Today it’s gays. Who knows what it will be tomorrow?

When the courts intervene to say oppressed groups cannot be deprived of their liberty, it’s always because a law has been written to strip some kind of liberty away. The goal of the court is to protect that liberty.

So why vote on whether someone should be granted liberty? America is founded on the principle that I get to have liberty, and life, and the pursuit of my happiness as an unalienable right. Unalienable right does not mean “unalienable unless Aroostook county disagrees.” Unalienable rights are considered fundamental, and government is created to secure these rights. If that doesn’t sound familiar, you haven’t read your Declaration of Independence.

The GLBT community would have been wise to sit this one out, because voting on fundamental rights sets a dangerous precedent for the American way. Had Question 1 failed, it would have been a symbolic victory for gays and lesbians. But it would have established gays and lesbians as a group whose rights can be decided by others, robbing them of basic human dignity under the guise of respecting it.

By bringing marriage to the courts, same-sex couples will be protected by the constitution, rather than having their rights subjected to a vote. Those who see marriage as a tool of their oppression fetish wouldn’t get to decide on the value of other human beings. Instead, the branch of government dedicated to the preservation of liberty will have to intervene in yet another case of the strong oppressing the weak.

Eryk Salvaggio is a straight man who thinks the Yes on 1 campaign ruined marriage.