The Courts, DOMA, and Prop 8

Today the Supreme Court overruled DOMA, a federal law defining marriage as between one man and one woman. They refused to rule on Prop 8, a California State constitutional amendment that would have done something similar, and which was overruled by a lower federal judge.

For this post, I'm going to set aside the issues of whether homosexual relationships should be included in marriage, whether they should be normalized, and whether the government has the right to define marriage at all. Instead, I'd like to focus on the role of the courts in our American democratic republic--our country where the people rule, and they select representatives to do the day-to-day work of governance.

Our government is filled with checks and balances to keep these representatives from abusing their powers. It is commonly accepted that the Supreme Court has the final say on interpreting the Constitution. While the Constitution itself makes no reference to this power, generally called "judicial review," Alexander Hamilton is quoted as saying that their job is to interpret the law and reconcile any contradictions between laws, with the Constitution as the highest law of the land:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

The Federalist #78

Note that Alexander Hamilton sees the Constitution as the ultimate representation of the will of the people. As long as we follow the Constitution, we're a democratic republic. That works fine for the court's overturning of DOMA, which was passed by Congress. I don't see the right to define family structure in Congress's list of powers, and I appreciate their allowing states to define marriage differently from each other.

The trouble is that the Supreme Court allowed a lower judge to overturn Prop 8, which was voted in not by the legislative branch of California, but by the voice of the people. It was a narrow majority, sure, but we now have a case where the courts have gone against the voice of the people in order to maintain their interpretation of the Constitution.

According to Alexander Hamilton, that defeats the whole goal of the system. I'm not saying it's good or bad--the courts could overrule a popular vote for good or for evil--but it is definitely undemocratic.

And I happen to like my democracy.

The Love of a Friend

Friendship is one of the grand fundamental principles of "Mormonism; [it is designed] to revolutionize and civilize the world, and cause wars and contentions to cease and men to become friends and brothers.

Joseph Smith, Jr., Teachings of the Prophet Joseph Smith, Collector's Ed. (Joseph Fielding Smith, ed.) p. 249, from DHC 5:516-518

When I was about 15 years old, I heard somebody mocking expensive dates between adolescents. They said, "Why would you spend so much money on someone who's probably just going to marry someone else anyway?" I thought about that for a while. I mean, I agreed that most dates should be inexpensive, but what about special occasions?

I finally decided how I would respond, if someone accused me of spending too much money on a date: "I'm not spending all that money on someone else's wife. I'm spending it on my friend."

We celebrate romantic love in our music and movies, but that isn't the only kind of love that can change your life. Moroni treasured his father's teachings about love:

And charity suffereth long, and is kind, and envieth not, and is not puffed up, seeketh not her own, is not easily provoked, thinketh no evil, and rejoiceth not in iniquity but rejoiceth in the truth, beareth all things, believeth all things, hopeth all things, endureth all things.

Wherefore, my beloved brethren, if ye have not charity, ye are nothing, for charity never faileth. Wherefore, cleave unto charity, which is the greatest of all, for all things must fail—

But charity is the pure love of Christ, and it endureth forever; and whoso is found possessed of it at the last day, it shall be well with him.
Moroni 7:45-47

In fact, without what the world calls true friendship and what the Lord calls the pure love of Christ, how can any marriage possibly succeed?

When we love someone freely and purely, something changes, both in the relationship and in the heart. Perfect love is endless!

Perfect love casteth out all fear.

Moroni 8:16

No power or influence can or ought to be maintained by virtue of the priesthood, only by persuasion, by long-suffering, by gentleness and meekness, and by love unfeigned;

By kindness, and pure knowledge, which shall greatly enlarge the soul without hypocrisy, and without guile.
D&C 121:41-42

Let thy bowels also be full of charity towards all men, and to the household of faith, and let virtue garnish thy thoughts unceasingly; then shall thy confidence wax strong in the presence of God; and the doctrine of the priesthood shall distil upon thy soul as the dews from heaven.

The Holy Ghost shall be thy constant companion, and thy scepter an unchanging scepter of righteousness and truth; and thy dominion shall be an everlasting dominion, and without compulsory means it shall flow unto thee forever and ever.
D&C 121:45-46

Such love also changes the recipient:

And lastly, but not less important to the exercise of faith in God, is the idea that he is love; for with all the other excellencies in his character, without this one to influence them, they could not have such powerful dominion over the minds of men; but when the idea is planted in the mind that he is love, who cannot see the just ground that men of every nation, kindred and tongue, have to exercise faith in God so as to obtain eternal life?
Lectures on Faith 3:24

But how does the Atonement motivate, invite, and draw all men unto the Savior? [see 3 Ne. 27:15 and James 4:10] What causes this gravitational pull--this spiritual tug? There is a certain compelling power that flows from righteous suffering--not indiscriminate suffering, not needless suffering, but righteous, voluntary suffering for another. Such suffering for another is the highest and purest form of motivation we can offer to those we love.

Tad R. Callister, The Infinite Atonement, pg. 213

The more someone loves you, the more it motivates and changes you. And infinite love is eternally powerful. For me, nothing else compares to the experience of your eternal companion loving you freely and deeply, empowered by the Savior to do so.