Lately, moral issues such as the legislation of gay marriage have been posed to various state electorates as well as to many state courts. In every case wherein gay marriage has been made legal, the choice has been made by state courts. In every case where gay marriage has been defeated, it has been through a popular vote of the people. In California, where the popular vote was to make gay marriage illegal, the courts stepped in and reversed the ruling. This has opened the gate for appeals to the Supreme court, first California’s 9th District Federal Court and then, if necessary to the Supreme Court of the United States. A ruling from the Supreme court would legislate gay marriage in all the U.S. States, overturning the voice of the people in a huge majority of states.
Recently, Dallin H. Oaks, a former attorney and now an apostle of The Church of Jesus Christ of Latter-day Saints, gave a speech on the fundamentals of the Constitutions, both of the United States and the fifty states that comprise it. The speech was presented on September 17, 2010, as part of the Constitution day observances. 
Elder Oaks’ focus was the institution of constitutional government. Thus, he was not referring to any distinct movement or current event, or to legislators or judges. Elder Oaks lamented the fact that our federal constitution seems to be held in less regard than it once was. The United States Constitution is the oldest written national constitution still in use. It has become the pattern, the basis, of many constitutions since it was created. Elder Oaks called it America’s most important export. “…if we abandon or weaken its fundamental principles, we betray our own national ideals and we also weaken our global neighbors.”
Elder Oaks explained that the fundamentals of the U.S. Constitution were divinely inspired. If more people understood that, fewer would criticize it, and more would think twice about altering it. The fundamentals, as explained by Elder Oaks, are as follows.
- Popular Sovereignty — Since sovereignty has been placed in the hands of the people, rather than in an aristocratic family, dictator, or king, the people have responsibility for the country. “The Constitution had to give government the power to withstand the cries of a majority of the sovereign people in the short run, but it had to be subject to their direction in the long run. The delegates to the Constitutional Convention achieved the required balance among popular sovereignty, stability, and protection of minorities through a power of amendment that was ultimately available but deliberately slow. It required the action of very large majorities — two-thirds in the Senate and the approval of three-fourths of the states.”
- Division of Power in the Federal Government — Power is divided between the federal government and the states. “…the power to make laws on personal relationships is one of those powers not granted to the federal government and therefore reserved to the states. Thus, the ordinary laws governing marriage and family rights and duties are state laws, subject to the power of national law to govern the extent to which the law of one state is binding on others.” The Equal Rights Amendment (30 years ago), if passed, would have removed some powers from the states. If the Supreme Court rules on gay marriage, it will take rights from the states. “…if the decisions of federal courts can override the actions of state lawmakers on this subject, we have suffered a significant constitutional reallocation of lawmaking power from the lawmaking branch to the judicial branch and from the states to the federal government.”
- The Bill of Rights — The Bill of Rights is comprised of the first ten amendments to the Constitution and has become an integral part of it. The first amendment guarantees freedom of religion, which includes more than the freedom to believe; it includes the right to free exercise of one’s religious beliefs. The first amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The intent is to keep the federal government from imposing one national religion. In other countries with a national religion, social benefits come through the chosen church. Religious freedom is guaranteed, also, by all fifty U.S. states. It is considered the pre-eminent right. “So it is that our national law formally declares: ‘The right to freedom of religion undergirds the very origin and existence of the United States.'” Elder Oaks said, “During my lifetime I have seen a significant deterioration in the respect accorded to religion in our public life, and I believe that the vitality of religious freedom is in danger of being weakened accordingly.” Freedom of religion is especially important for religious minorities. “Surely the First Amendment guarantee of free exercise of religion was intended to grant more freedom to religious preaching and action than to other kinds of speech and action. Treating actions based on religious belief the same as actions based on other systems of belief should not be enough to satisfy the special place of religion in the United States Constitution.”
- Separation of Powers— The Constitution created three entities — the executive, legislative, and judiciary branches of the government, with checks and balances to keep any one of them from becoming too powerful. It behooved every branch to work for the good of the people and not for any sort of self-aggrandizement.
- The Role of the Judiciary — There is “…widespread public feeling that the courts are revising the moral and cultural life of the nation by making policy determinations that should be made by lawmakers in the elected branches.” In the past, the judiciary has stepped in to solve pressing problems that the executive and legislative branches have not been able to solve. A good example is decisions over segregation. The judicial branch needs independence to function in the division of powers of the government. State courts hear over one hundred times as many cases as the federal court, and are closer to the people. “It is in the state courts where family law issues are adjudicated, where foreclosures take place, and where injured persons come to recover damages. When we speak of the importance of judicial independence, we must not neglect the important role of state courts as a co-equal branch of government.” Over-simplified, judicial activism is a “circumstance where a judge makes the law rather than merely interprets it.” The judiciary both makes and interprets laws, but “if the popularly elected lawmakers don’t like these judicial actions, they can change them by legislation. …the judicial lawmaking that has been legitimately criticized as judicial activism concerns the interpretation of state and federal constitutions. This kind of judicial action is not reversible by the popularly elected lawmakers, and cannot even be changed by the sovereign people except in those unusual circumstances in which a constitutional amendment is feasible. If such judicial action sets aside laws enacted or approved by a direct vote of the people, it offends two fundamentals: separation of powers and popular sovereignty.”
- The Responsibility of Citizens— Citizens have responsibility in a democracy and in a republic. They are…
- To understand the constitution. “We should take alarm at and consider how to oppose any action that would infringe these fundamentals.”
- To support the law. Mormon doctrine declares the following : “We believe that governments were instituted of God for the benefit of man; and that he holds men accountable for their acts in relation to them. . . . We believe that all men are bound to sustain and uphold the respective governments in which they reside” (D&C 134:1, 5).
- To practice civic virtue. “Those who enjoy the blessings of liberty under our national and state constitutions should promote morality….” Said John Adams, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
- To maintain civility in public discourse. “…contentiousness for the sake of division is bad for democracy.”
- To promote patriotism. Adlai Stevenson explained patriotism this way: “What do we mean by patriotism in the context of our times? . . . A patriotism that puts country ahead of self; a patriotism which is not short, frenzied outbursts of emotion, but the tranquil and steady dedication of a lifetime.”
Click here to read Elder Oak’s complete speech.
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