Constitution: 3 States: 0
This week Oklahoma, Pennsylvania and North Carolina became the latest states to run headlong into the brick wall otherwise known as the US Constitution. Increasingly, state legislators who don’t care for the way things are headed, in the country, have taken to writing their own laws, amending their state constitutions and proposing ballot initiatives to protect their political, social policy and ideological comfort zones.
Evidently, judging by the number of such actions, out in the states, quite a few states are uncomfortable with the powers-that-be, inspiring state executives and legislators to frequently bandy about concepts like state’s rights, nullification, secession, impeachment and the most recent addition to the Extreme Playbook, the Second Amendment Solution.
Fortunately, the framers of our constitution foresaw that leading a vibrant, young nation might sometimes devolve into an exercise in herding cats and they prudently built that framework of very stern stuff. Our constitution has survived some very trying times and ultimately, those tests have strengthened it and repeatedly strengthened our resolve to uphold the core principles that make us the global model of Democracy.
As with most foundational documents, though, ours are open to interpretation and argument and, in some cases, amendment but, ultimately such instruments must pass a rigorous testing of their essential constitutionality before becoming part of the fabric of American law. Thus the framers attempted to protect citizens against the self interests, regional imperatives and transient political agendas of their elected representatives.
In such a system, state governors and legislators are inherently more narrowly focused on the interests of their more parochial constituencies and are more attuned to the local power structure within which they must operate to be effective managers.
During the last decade, or so, our federal government has, for numerous wearisomely documented reasons, become increasingly dysfunctional and, as a result, national parties are looking more to effective state governors, for viable national candidates than they are to members of Congress. Governors know that and have been vying heavily, often flamboyantly, for national attention. As a result, we have been subject to an avalanche of dubious but attention-getting legislation, constitutional amendments and initiatives.
Well, “the wheels of justice grind exceedingly slow . . . ” but, all of a sudden this week, good results are pouring in and the US Constitution appears to be just as durable as ever.
For example, in my state, Pennsylvania, one of the most stringent and egregiously political Voter ID laws in the country was struck down. Why?
In a 50-page determination . . . issued Friday morning, Judge McGinley found that a lack of compelling governmental interest in imposing the requirement—the state acknowledged at the start that it knew of no cases of in-person voting fraud, the kind addressed by voter ID—could not justify the law in the face of “overwhelming evidence” that hundreds of thousands of qualified voters lack acceptable documentation.
“Certainly a vague concern about voter fraud does not rise to a level that justifies the burdens constructed here.”
Meanwhile, in North Carolina:
U.S. District Judge Catherine Eagles ruled Friday that states don’t have the power to force a health care provider to be the bearer of an ideological message in favor of carrying a pregnancy to term.”
Judge Eagles had previously put the law on hold, in 2011, after the Republican-led state legislature passed it.
At that time, Judge Eagles had already ruled that providers did not have to place an ultrasound image next to a pregnant woman so she can view it, describe its features and offer the patient the chance to listen to the heartbeat, as the law required.
And, finally, in Tulsa, Oklahoma:
Judge Terence C. Kern of United States District Court, ruled that the state’s ban on marriage by gay and lesbian couples is “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.” The amendment, he said, is based on “moral disapproval” and does not advance the state’s asserted interests in promoting heterosexual marriage or the welfare of children.
This makes Oklahoma the third state, along with Utah and California, to have a gay marriage ban amendment to the state constitution voided by a federal judge.
Republican Governor, Mary Fallin, is certainly not happy about the ruling:
In 2004, the people of Oklahoma voted to amend the state’s constitution to define marriage as ‘the union of one man and one woman. That amendment passed with 75 percent support.
The people of Oklahoma have spoken on this issue. I support the right of Oklahoma’s voters to govern themselves on this and other policy matters. I am disappointed in the judge’s ruling and troubled that the will of the people has once again been ignored by the federal government.
Predictably, Oklahoma State Rep. Sally Kern, [above] who has turned “exposing the homosexual agenda” into her own cottage industry, is absolutely livid saying, among other things that “gay marriage is not a civil right, it’s a human wrong.”
More from Sally who just can’t seem to stop fuming about gay marriage:
“I, like many other Oklahomans, am saddened by the ruling of Judge Kern (no relation) declaring that the freedom of 76 percent of the voters of our great state to believe in the moral principles on which our Constitution is founded is unconstitutional. America has a rich heritage of legal principles that involve liberty for all, equality and consent of the governed.
“Our laws are based on the Ten Commandments. Our Godly heritage stems from the laws of God which Jefferson articulated in the Declaration of Independence as ‘the Laws of Nature and of Nature’s God.’ Declaring homosexuality and same sex marriage (SSM) as a civil right is giving legitimacy to what God says is wrong. Judge Kern is seeking to give state approval to a behavior that is proven to be extremely harmful, especially to young people. In doing so, he not only violates the law of God but the principle of consent of the governed.
“This issue is like oil and water. If homosexuals win on this issue of SSM being a constitutional right, then Christians lose their freedom to practice their faith in society. It’s already happening in America. Just ask the baker in Colorado, the florist in Washington, or the photographer in New Mexico. Don’t think it can’t happen here. Don’t be bullied by judicial and homosexual activists.”
Phew! I must say that I, personally, have grown quite weary with the argument that a “majority” of state voters trump the Constitution. Both Fallin and Kern parroted the fact that 76% of Oklahoma voters voted to ban gay marriage. So. Let’s take a look at what that means . . .
Oklahoma typically has a low-to-middling voter turnout for state elections, generally about 56% of the electorate votes. In this case that was about 1.5 million and 75% of that 1.5 million means that a little over 1 million out of 3.8 million Oklahomans voted to ban gay marriage or, roughly 25% of the population decided for the state, forever after. Not what I would call an overwhelming mandate.
And when these constitutionally dubious laws and amendments are passed? guess who foots the bill for the hugely expensive adjudication process that inevitably ensues? That’s right—every taxpayer in the state for years to come. The Oklahoma gay marriage ban has been in the courts for 9 years now.
Perhaps a better question to put on state ballots is “How would you like your taxes to be spent on defending this initiative against challenges in state and federal courts for the forseeable future? YES/NO
But those are mere quibbles compared to the real issue at hand which, in all three of these cases is: are human and constitutional rights subject to vote and majority rule. And the answer is a resounding and unequivocal NO!
No one has a natural or legal right to curtail the right of another citizen to marry the person of his/her choice and enjoy the benefits, both social and legal, that accrue to that relationship. No one has the right to put legally prescribed words into the mouth of a physician advising a patient. No one has a right to interfere with one’s constitutionally-guaranteed right to vote.
Rachel Maddow has said many wise and wonderful things in her career, so far, but addressing this particular issue has to be one of her finest hours—August, 2010, after Judge Vaughan Walker’s decision that California’s Prop 8 was unconstitutional:
In general, when you ask for a majority rules vote on minority rights, you get results like what we‘ve seen on the gay marriage issue—31 out of 31 times in 31 out of 31 states voters voted it down.
But here‘s the thing about rights—they‘re not actually supposed to be voted on. That‘s why they‘re called rights. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
No state shall deny to any person within its jurisdiction the equal protections of the laws—even if lots of people in that state want to. It‘s not up for a vote. Rights are part of the deal if you‘re an American. That‘s why the Equal Protection Clause is in the Constitution. In this case, specifically, it‘s in part of the newly controversial 14th Amendment to the Constitution.
Rights are not supposed to be put up for a vote. They‘re not a popularity contest. They‘re supposed to be subject to a test of their constitutionality. That‘s why we have courts, not just to put people on trial, but to try the things the people say they want to be their laws. We try those things against the Constitution. And the Constitution restricts the things that Americans can make laws about so those laws don‘t infringe on our constitutionally protected rights.
If I had my way, those few short paragraphs would be taught in every high school Civics class in the nation so that our children grow up understanding the soul of our Constitution, in a clear and simple way. Then, perhaps, they will know better when ignorant bigots, political hacks and ideologues try to persuade them otherwise.
If, on the other hand, you believe that Gov. Mary Fallin and State Rep. Sally Kern make good points? I have a time share at an Oklahoma ski resort you might be interested in . . .