The following was cross posted from Revealing The ACLU:

As we should all be aware, the US is not a direct democracy, and such was not the intent of our Founding Fathers. In a Direct Democracy there is nothing to protect the minorities from the majority. What was put in place, and still stands today is a republic, or representative democracy. Our system provides for the will of the people and the protection of all, not just the majority. I have often wondered if we are living in the republic the founders intended, or have we squandered a hard won fresh start? How do the issues we face today fit into the intent and direction of our founding fathers? In most cases there is no difference between the right of the majority and the right of the minority – we all have equal protection under the law. But what about new rights which where not envisioned in the original constitution – what then?

First, as a framework, let us set some structure around rights in general. The often used phrase “Unalienable Rights” is not something you will find in the constitution, it actually appears in the Declaration of Independence. The constitutional stance on rights are specific to those items set out in first 10 amendments to the constitution (The Bill or Rights) or other parts of the constitution, like the 14th Amendment and Article 1 sections 9 & 10 , which may take a stance on particular rights. The point here is that certain Rights are inherent to all Americans, and are not open for discussion or debate, at least by the democratic process. Other rights, not specifically mentioned in the constitution, are put into the realm of democratic debate. There is a democratic process for creating new laws in this country; either through direct vote or through our duly elected representatives.

Next, lets make sure we are on the same page in discussion the roles of the branches of government in this context. The legislative branch of government is that with the authority to make new laws. The Judicial branch, made up of our court systems, decides arguments about the meaning of laws, how laws are applied in specific situations, and if a law is consistent within the framework and intent of the constitution. The judicial branch cannot make new laws.

Lastly, lets make sure we are all on the same page on the definition of minority and majority – politically speaking. The best definition of a minority I could find came courtesy of Wickipedia:

A minority or subordinate group is a sociological group that does not constitute a politically dominant plurality of the total population of a given society. A sociological minority is not necessarily a numerical minority — it may include any group that is disadvantaged with respect to a dominant group.

Majority is a little easier, but lets define it anyway:

A majority is a subset of a group that is more than half of the entire group. This should not be confused with a plurality, which is a subset having the largest number of parts. A plurality is not necessarily a majority, as the largest subset may be less than half of the entire group.

We have lots of people calamining to be minorities – and in many of the cases today it gets blurry on what a political minority is. I agree that race, sex, and even age should be a bases on which to claim political minority. But how about belief? Can a group holding to a belief claim they are a minority because most people believe otherwise? The logic becomes tenuous quickly.

So where do issues like Same Sex Marriage or Abortion come into play when cast into the above light? I would like to review these two items separately, and according to the constitutional merit, not the merit of the item itself. That is to say, my thoughts on both topics has already been stated, so rather than reiterating those points, lets just look at them from a raw constitutional point of view.

Lets take the more straightforward, in my opinion, first: Abortion. To begin we have to ask if Abortion is a right under the US Constitution. Dose the constitution address abortion at all? I have been unable to find any reference to Abortion in the constitution. So where dose that leave us?

It should leave us in the realm of democratic debate – when the issue of abortion is taken up at the legislative level, and made legal only after majority rule either directly by the people or by the duly elected legislature. To the best of my knowledge, the people have never been asked to rule on abortion directly. Those abortion bills which have reached state or federal legislative bodies have all had to do with refining abortion limits. An example being the proposed ban on partial birth abortions which was highly visible in the Senate this past year.

This being the case, why is abortion legal? Because the judicial branch of government has opted to make it so in cases such as Roe v Wade.

Justice Rehnquist, certainly not a conservative member of the Supreme Court during Roe v Wade summed it up nicely:

“ . . . the Court uses her complaint against the Texas statute as a fulcrum for deciding that States may impose virtually no restrictions on medical abortions performed during the first trimester of pregnancy. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied . . . the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one. There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”

Justice Byron White, another member of the court at the time, has the following to say:

Regardless of whether I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.“

Both Rehnquist and White where clear in the belief that Abortion, regardless of their personal beliefs, was an issue to be decided by the legislative branch of government, not the judicial. Unfortunately the majority of the Supreme Court at the time did not agree. Democracy did not have a hand here – it was 7 men who where atypical of society at large who decided this issue. This is important as the overwhelming belief of the time was fundamental Christian, and the democratic process would likely not have supported abortion as the Supreme Court had done.

Now lets looks at a slightly more complex issue, that of extending marriage into non-traditional areas such as gay marriage.

Where this issue becomes more complex is on the minority issue. Remembering our previously definitions of majority and minority can we apply the term minority to Homosexuality? That is not an easy question, even if you have a strong opinion on homosexuality. Homosexuals are certainly a numeric minority. Depending on who is presenting the numbers, they have been stated as anywhere from 1.5% to 10% of the US Population. Where the logic becomes frayed is the “nature vs nurture” issue. If Homosexuality is a choice then I see no logical foundation upon which to grant the rights of a minority group. The limits, strictures, and restrictions of homosexuality are taken into account with the choice. The choice itself should not confer special privileges or rights. If homosexuality is not a choice and biologically driven, then I see no choice, despite my personal beliefs, but to accept that homosexuality is a minority group, and it be treated accordingly – such treatment logically to include equal protection, recognition of unions, and any other benefits heterosexuals enjoy.

Unfortunately, like so many things, science can be used to further either view. There has been no groundbreaking discovery’s to settle that argument and I most certainly do not plan to offer any here.
This article goes into depth with both views, but concludes that neither has been definitively stated.

Let me be clear, before I am hung by my fellow conservatives: My faith and belief structure hold homosexuality as a sin, and with all sin there is a conscious choice element. My goal here is, once again, not to rule on the validity of a position but upon the constitutional rules and logic which should apply to it.

Having no other evidence on which to settle the nature vs. nurture argument, I see no choice but to move on to the constitutionality test. I am not abdicating on this issue, but at this time there is no right answer. We cannot just sit and wait on these issues until science catches up.

Is homosexuality defined as a right in the US Constitution? Better yet, lets take a step further and ask instead if there is a constitutional right to sexual freedom? Neither appears in the constitution, and the concepts cannot be applied to the Bill of Rights. There have been attempts to link homosexuality with the right of privacy as homosexual acts should normally occur within the privacy of ones own home. However, we can see how that logic dose not apply to Homosexual marriage.

So next we have to turn to the democratic process to resolve the issue. That is, put before the legislature or the people proposals to legalize homosexuality. It should be debated in a democratic way, and the will of the people or their elected representatives. Fortunately, much more so that abortion, this issue of gay marriage has followed the democratic process. In nearly ever case where the legislature has sought to address gay marriage, the overwhelming result has been the blocking of gay marriage. As of this writing Massachusetts is the only state which has passed a law in support of gay marriage – and this was done correctly though the democratic process. Not all states have taken a stance at this point, but additional legislation is in the works for most states.

More recently, however, the courts have been stepping into this issue – wrongly in my opinion. Most recently, this week, The New Jersey Supreme Court rules that homosexual couples should be accorded the same rights as heterosexual couples. This decision has taken the discussion out of the democratic process and foced a preconceived end result on the legislature. The New Jersey Supreme Court has decided that the voice of the people will not be heard in this issue and they are, sadly, protected as they are appointed judges, not elected.

When the courts step into issues which are not constitutional issues they in effect, create a new right separate from what the constitution had ever envisioned. While our constitution should be an ever growing and maturing thing, the course of that maturation should never be at the hands of the unelected judges who are not beholden to the will of the people. Judges who see fit the legislate from the bench are violating the intent of our constitution, the will of the people, and the trust placed in them.

Supreme Court Justice Antonin Scalia sums it up probably the best of all:

“On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment. Whether it’s good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution.”

If the constitution is silent, as it is on issues like Abortion and Same Sex Marriage, then it is up to the democratic process, not appointed judges, to decide. The courts do have an obligation to protect the rights of the few from trampling by the many, but they do not have the authority to create new rights.