Does Supreme Ct. Ruling on Prop 8 Threaten Our Republic?

[John317]

The Liberty Blog

March 16, 2009

A Republican Form of Government?

By Alan J. Reinach (an SDA Attorney and pastor)

Marriage was not the only thing on trial in the California Supreme Court on March 5 as the justices heard arguments about the constitutionality of Proposition 8, itself a constitutional amendment approved by the voters to define marriage as a man and a woman. Also on trial was the fundamental constitutional guarantee of a republican form of government. Our founding fathers inserted such a guarantee into the constitution long before there was a party called “republican.” It refers to a representative government where there is a separation of powers among the various branches. In the words of Abraham Lincoln, government is not the master but the servant since it is to be “of, by and for the people.”

Even judges must adhere to constitutional limits on their authority, and the people have the power to overrule the courts. At issue in the Prop 8 case was the question of what limitations exist on the right of the people to overturn the courts where fundamental rights are at stake. How far can the people go in reversing a fundamental right? The justices were reminded that previous ballot initiatives were upheld that did reverse fundamental rights: for example, Proposition 187 eliminated the right to affirmative action based on race. Courts have frequently extended as well as retracted various rights. Rights are not something absolute, immutable, something that grow only in one direction. Rights tend to both expand and contract. Supporters of same-sex marriage expressed outrage that the people would be granted the power to take away a fundamental right. But this argument begs the question as to whether the court should have extended the right to marry to gays in the first place. The court’s opinion approving same-sex marriage ignored the question: what is marriage? The people reasserted the authority to answer that question, and to define marriage as it has been understood throughout history, and across cultures, religions and civilizations.

Ultimately, in a contest between the people and the court, the question comes down to one of authority. The people of California rejected the exercise of judicial authority to extend the right to marry to same-sex couples. Would the court overturn the will of the people? This is no less a question than whether the principle of republican government will be respected.

As Dean Kenneth W. Starr has told the court in his brilliantly written briefs, “The constitution has now been amended by the sovereign people who are its creators. That is the beginning and end of this case.… The Attorney General is inviting this Court to declare a constitutional revolution that would fundamentally alter the role of the judiciary, putting judges in the role of supreme overseer of the people’s constitution-making power, a result patently contrary to popular sovereignty.”

Supporters of same-sex marriage expressed shock and dismay at the position taken by Dean Starr, especially the report that he admittedly agreed that the people could repeal the constitutional guarantee of free speech. Think about it. Do the people ultimately determine the text and content of both state and federal constitutions? Of course they do. This does not deny the courts their proper rule to interpret and apply the constitution, but in the end, the people have veto power over the courts, not the other way around.

A wide range of media reports and interviews suggests that the court is poised to uphold Proposition 8, while also validating the same-sex marriages already performed under color of law. The court has 90 days to issue its written decision. If it upholds Proposition 8, same-sex marriage supporters have vowed to place another initiative on the ballot in 2010 or 2012 in an effort to overturn it. Should the court strike down Prop 8, Californians have little recourse. There is little doubt that efforts will be made to recall Supreme Court justices, or vote them out of office. There may even be subsequent constitutional amendments introduced. The proposed Marriage Amendment to the Federal Constitution may also gain new life.

Seventh-day Adventists expect continued erosion of the republican principles of American government, as symbolized in Revelation 13 by the beast with lamb-like horns that begins to speak as a dragon. The two lamb-like horns are believed to represent the Protestant and republican foundations of our nation. The “speaking as a dragon” represents the ongoing repudiation of these principles, as the foundations of freedom give way to increased tyranny. Now is not the time for complacency, but for increased vigilance to the cause of liberty, and for constant prayer for our nation, including the California Supreme Court. Of course, renewing your NARLA membership can’t hurt either!

Source and reader responses: http://www.religiousliberty.info/blog/?p=92

[John317]

Response by John V. Stevens, Sr.

john stevens — March 16, 2009 @ 4:12 pm

Thank you for sharing. I respectfully disagree with the charge that the republic that was guaranteed by our Founders and the Constitution would be overridden if the California Supreme Court chooses tos et aside proposition 8 and make such marriages legal. Why? Because the will of the people is not a republic. The Founders fully intended to make the will of the people circumscribed by its being a republic so that there would be certain inalienable rights that could not be over thrown by the will of the people, or majority vote, or by governemnt administration, legislation and judicial tampering. Furthermore, if law was left up to the will of the people in all cases then it would not need a constitution. The majority would be empowered to decide anything they want. This restriction on the will of the people is the very essence of our unique form of government and our only denfence for religious freedom. One day the Sunday law will be upheld, requring religious worship on that day and forbidding worship on God’s holy Sabbath. We are even told in that context that such an act would repudiate every protestant principle of the constitution. It is the use of force that makes it wrong. Furthermore, the nation is not to use religion as a basis for law, and one cannot separate religion from marriage. So I differ even though I believe homosexuality and lesbianism is wrong and caause the social fabric of the nation to fall apart and that it is sin, but the cosntitution does not give the nation power to define sin and much less to punish it. When we lie it is a sin gainst God. We do not sin against our neighbor. Our sin is always against the Lawgiver, not the person obligated by the law. That is called a fault by James.

To support biblical principles as the basis for law is to open Pandora’s box and invite the majority, the will of the people, to do away with my religious freedom and I am unwilling to do that in spite of the fact that some things take place with which I disagree. God lets people do those things but reserves His punishment until after the judgment. Free choice always carries with it responsibility and consequences.

I respect Alan’s right to take his position but I think it is founded on the wrong premise. Again, a republic is distinctly different than a demoncracy and it requires a constitution. The democracy does not require a constitution for they can vote anything they want as long as they get a majority vote.

John V Stevens, Sr.

[Dr. Shane]

Interesting that an activist court can be viewed as a fulfillment of Revelation 13.