What do history's most notorious despots have in common with many of the flag-waving, patriotic politicians of our day? Both groups rise to power through the exploitation of fear, which has become a societal plague. There have been widespread casualties. We need an antidote. Feardom offers its readers a much-needed immunization.
In the past week Utahns have produced a cacophony of emotions, with elation on one side and wailing and gnashing of teeth on the other. This rollercoaster of reaction was sparked by a pair of opinions issued from federal judges in Utah relating to marriage. In response to both, many critics have cried out that the judges overturned, and thus violated, the will of the people of Utah.
Let’s see if this is true.
The first ruling, Brown v. Buhman, was issued last week by Judge Waddoups in response to a lawsuit over Utah’s bigamy statute. While most bigamy statutes around the country aim to prevent fraud by prohibiting a person from marrying more than one spouse, Utah’s goes a step further by banning cohabitation with a person other than one’s spouse. This clause was introduced specifically to target polygamists, and was declared unconstitutional by the judge. Asked for comment on the ruling, Utah Governor Gary Herbert summarized a popular criticism of the ruling in saying:
I’m always a little concerned when we have decisions that change public policy by the courts. I’d much rather see decisions on social issues come from our Legislature representing the will of the people.
The second ruling, Kitchen v. Herbert, was delivered one week following the first and opined that Utah’s constitutional amendment—declaring that marriage is between a man and a woman—is unconstitutional by violating the 14th amendment to the U.S. Constitution. In issuing his opinion, Judge Robert Shelby wrote that “the Constitution protects the Plaintiffs’ fundamental rights, which include the right to marry and the right to have that marriage recognized by their government.” The criticism of this ruling has been similar to the first, and was similarly summarized by the Governor:
I am very disappointed an activist federal judge is attempting to override the will of the people of Utah.
The common thread between these two cases is the contention that federal judges have overturned the will of the people, and that they are usurping legislative authority in dictating law from the bench. Of course, the whole point of the judiciary is to serve as a check against the legislature and, where necessary, invalidate its mandates when they violate somebody’s rights.
A corollary point should be made here—saying that the “will of the people of Utah” has been overridden is wildly inaccurate. There is no monolithic entity known as “the people.” Rather, Utah is made up of diverse people with wildly disparate political views and personal interests. Even when these people vote on something directly, or indirectly through the legislature, there is no single will. At a bare minimum there are two—the majority and the minority. Thus, the governor (and those of like mind) should be citing not the will of the people, but the will of the majority of the people.
And, of course, it is never ideal to let the majority do whatever they want simply because they are the majority. Last I checked, championing the actions of a mob was not a good thing. To the extent that the mob’s actions violate the will of the dissenting minority, then we shouldn’t stand idly by, let alone cheer on the mob’s continued oppression.
So the real question here is whether the laws that were struck down were in fact violating the rights of the minority—that alone is the pertinent point of discussion, rather than the percentage of voters who introduced these laws to begin with.
In the same-sex marriage ruling, the judge claimed that individuals have a “fundamental right” to government-sanctioned and -regulated marriage. In effect, he argues that we have the right to a government permission slip for our personal relationships. I fail to see how this is true, as it defies comprehension that participation in a government process, and the benefits that have been legislatively associated with that process, is a “fundamental right.”
In contrast, the polygamy ruling claims that “no ‘fundamental right’ exists to have official State recognition of legitimation of individuals’ ‘purported’ polygamous marriages…” This profound conflict in judicial opinions between two forms of “alternative” marriage, as it relates to state acceptance thereof, must be resolved if either is to be declared The Truth.
The Supreme Court has previously defined a fundamental right as something “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Ironically, polygamy fits this description far better than same-sex marriage, and yet the judges in either case had reversed opinions on the matter.
Do people have a fundamental right to marry? Yes and no, depending on your definition of the term. You and I do not have the fundamental right to obtain a government permission slip. We do, however, have the right to associate with those whom we choose, be they co-workers, friends, political associates, lovers, or otherwise.
Based on this actual fundamental right, the polygamy ruling is correct while the same-sex marriage ruling is not. Plaintiffs in the former were a polygamous family threatened with investigation and prosecution for speaking out about their lifestyle, who were considered felons under Utah law for merely cohabiting peacefully with one another. No such threat of punishment exists in Utah for same-sex couples after 2003’s Lawrence case invalidated Utah’s sodomy statute. Accordingly, the fundamental rights of Kody Brown and his wives were being denied them by the majority, whereas same-sex couples cannot claim the same violation in their case. Though they desire to have increased societal legitimacy and claim inequality under the law when denied their own marriage licenses, this is not a fundamental rights issue.
It is unproductive and quite silly to cry foul whenever a judge invalidates something that the majority of people prefer. We should instead discuss and analyze the underlying arguments and principles involved in the case instead of merely siding with the mob. As it relates to marriage, the issue should be taken out of the mob’s hands altogether, such that the ebb and flow of political power may no longer mess with such a personal and sacred relationship.