The Guarantee Clause of Article IV, Section 4, Clause 1 of the United States Constitution provides that “the United States shall guarantee to every state in this union a republican form of government.” So do citizen initiatives such as propositions and ballot proposals deprive Americans a republican form of government, since these initiatives involve a more pure democratic approach to governing (participatory democracy or broad participation in decision making), as opposed to a republican form of governing, which is guaranteed in the U.S. Constitution. In Luther v. Borden, it was determined that controversies arising under the Guarantee Clause are political questions, so these type of controversies are nonjusticiable; therefore, the issue is left to Congress or the President to decide.

Perhaps it is best not to allow a vote on every issue. Using Proposition 8 as an example, blatant discrimination shouldn’t be used to take away rights, and discrimination shouldn’t be the spirit of any constitution. Furthermore, ballot initiatives such as Proposition 8 are written and supported by fanatics. Is that wise in a democracy?  Shouldn’t we be protecting the rights and civil liberties of minorities from the tyrannical discrimination that is sometimes exercised by portions of the majority by not allowing these type of initiatives in the first place?

“Activist federal judges” is a misleading phrase, because it is used to criticize judges that exercise their authority over certain issues. However, the framers wanted judges to protect the rights and civil liberties of minorities, and rights should be protected from being trampled on by the majority or tyranny of the majority. Likewise, perhaps our elected officials are best to legislate and protect minorities from the tyranny of the majority and not ballot initiatives even though they can confer rights. From the San Diego Union Tribune, United States:

Eight years ago, Californians voted to prohibit same-sex marriage by approving Proposition 22, which passed with 61 percent of the vote. The Supreme Court struck down that statute initiative as unconstitutional in a 4-3 ruling. Proposition 8 was drawn as a constitutional amendment to nullify the high court ruling.

Rt. Rev. Marc Andrus Bishop of the Episcopal Diocese of California put it best:

This shift in consciousness, including same-sex marriage, is a move towards the good. I affirm this from a spiritual, religious point of view. As a Christian, I view the trajectory of history as moving us towards global reconciliation and global justice. The Gospels tell us that Jesus said that God’s love is pervasive. He used the idea of rain and sunshine, both of which fall on all the world, irrespective of people’s prejudices about who is deserving or who is not.

If Proposition 8 passes, which I hope it does not, those of us committed to civil rights for all will simply continue to hope, and continue to work. Perseverance, knowing that God continues to travel with those who are disenfranchised, is a path we know. I trust, however, that the great Californians with whom I live will continue their tradition of forging ahead towards what lies before our whole great country

Ironically, blacks overwhelmingly supported the discrimination that is Proposition 8, and whites overwhelmingly opposed it. From the Sacramento Bee, USA:

African Americans voted for Barack Obama, but they also voted to support Proposition 8, 70 percent to 30 percent. Latino voters were roughly divided on the question.

Campaign manager Jeff Flint said the Yes on 8 campaign “always felt like a strong turnout among ethnic Democrats, particularly African Americans and Latinos, would be helpful to us.”

“They are culturally conservative. They support traditional marriage,” he said. “We felt like a Barack Obama surge with those voters would actually help us.”

UPDATES:

1. What Will Happen to California Same-Sex Marriages?
2. Thousands protest gay marriage ban in Los Angeles
3. Group to protest gay marriage ban in front of Mormon headquarters
4. Blaming Black Voters for Prop 8 Loss is Wrong and Destructive
5. 

On the Net: Is California’s Repeal of Same-Sex Marriage an Unconstitutional “Revision” by Initiative?

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