At 5:01 on June 16th, gay marriage became legal in California. If you check out some pictures, they're adorable and the first couple to legal marry are Del Martin and Phyllis Lyon, both in their 80's, who have been together for 50+ years (pictures of those two are just soooo cute in their old lady-ness).
Elsewhere I've discussed the legality of the case - because other cases have ruled the right to marry an inherent civil right and because sexual orientation is protected under the equal protection clause, it's unconsitutional to limit marriage between two people based on gender and sexual orientation.
However, citizens in California and elsewhere are trying to circumvent the court's ruling by gathering signatures to get a constitutional amendment banning gay marriage on the ballet in November. "It's the will of the people!" they cry, hoping to sway opinion and rule through that argument.
Marriage equality activists say that denying gay people the right to marry creates a group of second-class citizens who are discriminated against through laws and practice. It's an inherent right that two people, regardless of gender, should be able to marry (and this is an argument the CA Supreme Court agrees with in their May 15, 2008 decision on In re: Marriage Cases - the CA Supreme Court decided people should be able to marry regardless of race in 1948 in Perez v. Sharp and the SCOTUS made it federal in 1967 with Loving v. Viriginia).
We've heard these two arguments before - or at least the history of the United States has, not anyone alive today. These are almost exactly the same positions Abraham Lincoln and Stephen Douglas took on slavery in the 1858 Illinois Senate race and then again in the 1860 Presidential race.
For several years, Douglas was the champion of popular sovereignty, or popular rule - the concept that people should be able to decide what's best for their state/territory. Lincoln agreed with popular sovereignty, or at least up to a certain degree, like when popular opinion tread on a cause that wasn't moral. For Lincoln, slavery was immoral and violated the natural rights of Black people.
In seven different debates held throughout Illinois (including one at the fine institution of Knox College, where Amelia and Kate currently attend), Douglas and Lincoln verbally sparred back and forth over popular sovereignty and the morality of slavery. Douglas and Lincoln were debating the merits of the Kansas-Nebraska Act, which repealed the Missouri Compromise (the Compromise contained new slave territories to beneath the southern border of Missouri, with Missouri as the exception). Kansas-Nebraska stated that the rule of the people should decide if a new territory was to be slave or free, designed by Douglas and popular sovereignty. Other things complicated the debate as well, such as the Dred Scott SCOTUS ruling and Douglas' race-baiting of Lincoln (that's another story for another time). The debates were incredibly popular all over Illinois and they were published in various Chicago newspapers and newspapers all over the nation.
Douglas won the 1858 Illinois Senate race, however, Douglas and Lincoln faced each other again two years later on a much wider stage - this time for the President of the United States. They reiterated much of the positions and arguments throughout the 1860 race, and that time, Lincoln won.
This isn't the first time US politics has heard the popular will/natural rights debate, and it won't be the last time. However, we can make sure that the voices speaking for the expansion of rights are heard as opposed to the voices trying to limit rights. The Constitution and Bill of Rights wasn't created to close off freedoms - it was crafted so to explicitly say, "These are the specific rights that cannot be taken away from us and that goes for any other rights as deemed necessary in the future" - the right to vote based not on gender or race, for example. I believe the right to marry falls under this category as well, and the CA Supreme Court agrees with me.
So next time you hear someone say, "The people don't want gay marriage! We should follow the popular opinion of the people!" remember that this argument has been tried before and when it comes down to inherent rights, it's not going to work.
This post was influenced by Lincoln and Douglas: The Debates that Defined America.