There are two types of governments; those in which the government owns the people and those in which the people own the government. Historically almost all governments have been of the former type; the government, one way or another, owns the people. Such governments uniformly eventually become abominations wherein a tiny minority enslaves the vast majority.

In America we have been extraordinarily fortunate: We have lived in the premier example of that extremely rare second type of government. In America the government, mostly, does what We The People, tell it to do.

Born in this traditional bastion of democracy, you may believe that government doing what We The People tell it to do, is the natural order of things; the only way things can be. If so, then you have never lived under matured socialism, either the National Socialism of Nazi Germany and its client states, or the International Socialism of the Soviet Union and its client states. If you believe our tradition of benevolent government is the natural order of things, then, if born before 1960 you are either profoundly stupid or you were bored with and slept through your history classes. If born after 1960 you were almost surely deprived of a significant historical education and can only be blamed for not lacking the gumption to educate and think for yourself.

You have been profoundly lucky to have lived in a nation where We The People tell the government what the rules will be. It seems like this is the natural order of things. It is not the natural order of things! That “Natural Order” is being turned on its head. At this very moment in time, America is transforming from a nation in which the people own the government into a nation in which the government owns the people.

Democracy is dying!

The immediate symptom of this murder of democracy is Kristin M. Perry v. Arnold Schwarzenegger. The genesis of this case is as follows:

In 2000 there were substantial fears among some Californians that California would be forced to acknowledge out of state gay marriages. The California initiative process was used to place Proposition 22 on March 27, 2000 ballot. The 14 word proposition, entitled the “Defense of Marriage Act” provided, in its entirety: "Only marriage between a man and a woman is valid or recognized in California". Proposition 22 passed with a substantial margin; the language was added to the California Family Code.

In 2008 the California Supreme Court overturned Proposition 22 (In re Marriage Cases (2008) 43 Cal.4th 757) as inconsistent with the California Constitution. An initiative process was immediately launched placing Proposition 8 on the November, 2008 ballot. Proposition 8 sought to reverse the State Supreme Court’s ruling by placing the Proposition 22 language into the California State Constitution. On November 4, 2008 the voters of California modified Article 1 of the California Constitution by adding Section 7.5 which provided: "Only marriage between a man and a woman is valid or recognized in California."

Proposition 8 was immediately challenged in both state and federal court:

In Strauss v. Horton (2009) 46 Cal.4th 364 the California Supreme Court correctly upheld Proposition 8 as within the rights of the People of California to enact.

On August 4, 2010, in Kristin M. Perry v. Arnold Schwarzenegger the US District Court for Northern California held that Proposition 8 was unconstitutional under the US constitution as (1) a violation of the Due Process Clause, and (2) a violation of the Equal Protection Clause of the Constitution.

There will be many analyses of all the various “legal rationales” for and against this decision by folks with many letters behind their names. I’m not going to do that here. There is an old saying: “Can’t see the forest for the trees” that I believe is appropriate here. I’m going to try and step back and look at the forest. In the long run, it really is the forest that is important.

But just for fun, before I move on to looking at the forest, for all you folks who are transfixed by the trees, I would like to remind you of a child’s game you have probably played and long forgotten. When taking in all the gory details of the analysis I want you to think about the lessons to be learned by this child’s game.

The game is generally known as “Telephone” in the US, as “precedent” in the legal world, and by many other names in many other countries. It can be played in many ways and is often even played for educational purposes in graduate schools. (I first played it in an art class where, after passing through the hands of many budding artists, an essentially black logo became an essentially white void.) However, the following is the classic setup: Get a bunch of folks (Guinness reports a 614 person game) standing in a line. Whisper something into the ear of the first person, who in turn whispers in the ear of the next, and so on down the line. The game is considered the greatest successes when the message is humorously transformed into something with a radically different meaning, but deemed somehow “wise”. Thus the statement “Obama is the greatest US president of all time!” might be transformed into “Obama sodomizes us all the time!” I urge you, whenever some judge or lawyer talks about precedent and abandons all though of original intent, just think about that child’s game, Telephone, and wonder about who they are trying to sodomize.

I find the Perry decision appalling. It makes me angry. It makes me scared. It makes me (rationally) paranoid. And none of those emotions has anything to do with sexual orientation. Those emotions are all about a commitment to democracy, the rule of law and to limited government. They arise from stark terror at seeing democracy murdered and fear of what is to follow.

You are wondering where this rant comes from.

The court has essentially found a “Right” of gay marriage. I ask: Where did this right come from? When did We The People consent to this?

In America, our laws are derived from the Constitution, from statutes and from the common law: The law comes from, and only from, the Consent of We The People. Any other imposition of law is unlawful, and in my opinion so profoundly opposed to the fundamental values of We the People, our Constitution, and our national character and values, that it may well rise to the level of Treason.

In the issue at hand, where, specifically, is the Consent of We The People?

Common Law – When America first formed we needed laws to govern ourselves. There was not an instant myriad of statutes covering everything, so we relied on the common law. The common law was derived from English law and reflected the common set of expectations that people had as to what the law was, often guided by previous court decisions. As time passed, common law has been largely supplanted by statutes passed by the people or their representatives. There is no hint in common law that marriage is anything other than as defined by Proposition 8.

Statutes – Propositions 22 and 8, both voted into law by the People of California, are clear in their language: "Only marriage between a man and a woman is valid or recognized in California."

U.S. Constitution – Legally, the only place left to go is the U.S. Constitution. So the Perry court went there, specifically to the Due Process Clause and the Equal Protection Clause. Both those clauses appear in Section 1 of the 14^th Amendment, ratified in the aftermath of the Civil War, on July, 9, 1868, in order to protect the rights of former slaves. Section 1 provides, in full:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What does all this mean: As to Due Process, the Supreme Court has ruled that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Since when has gay marriage been “so rooted” in our traditions?

And as for “equal protection,” what does it mean? It could mean what the people at the time the 14^th Amendment was passed understood it to mean, and thus consented to, or it could mean anything the words can possibly be twisted into meaning via some warped judicial game of Telephone.

If the later is the proper determination, then I demand equal protection, the same protection as Obama gets. I demand around the clock Secret Service protection. And I demand it for every citizen. That would be “equal protection”. But of course nobody believes that is what We The People intended or consented to.

Again, I ask the question. When did We The People consent to the granting of this right? When the 14^th Amendment passed in 1868 did We The People support gay marriage? Can anyone point to any single Congressman or Senator voting for the 14^th Amendment who intended or would have approved this outcome? Did any state ratifying this amendment have a marriage law in any way consistent with this outcome? The answer to these questions is a universal “No!”

Where, oh where exactly, is the consent of We The People to this outcome. Can anyone point to a single human being voting on the supposed source of this right who can reasonably be said to have intended, or would have approved, this outcome? Consent very simply does not exist. It is being foisted upon us by an unelected government dictator indifferent to the will of We The People. It is a HUGE middle finger being lifted to Democracy. That this is happening is terrifying and a sure sign that Democracy in America is dying.

You may respond that the court so establishing a “right” to same sex marriage is no big deal because the march of history is clearly toward the legalization of same sex marriage. I have no doubt that is correct. If given the chance, voters in California and many other jurisdictions will soon approve same sex marriage. When this is done, We The People will have had our say. Democracy in America will be reaffirmed.

But Democracy must be reaffirmed in America. For the court to impose this profound change in our culture against the will of We The People is a profound abrogation of all the tenants of Democracy and all of the principles upon which this nation is based. The precedent will be set, and once set all factions will be willing throw Democracy into the trash bin of history. The pendulum swings both directions. No matter where you are in the political spectrum, at some point those with interests far different from yours will come to power. Will you be pleased if they, too, are so willing to govern against the explicit will of We The People?

I suspect that, in the long run, this decision will impact negatively on the Gay Rights Movement. The decision is unlikely to survive its eventual journey to the Supreme Court, but people will not soon forget the betrayal of democracy announced in this decision, and will long blame the Gay Community for it. That will not portend well for the Gay Community.