Argument 3: The People's Will, the Will of the Majority, is for Gays not to Marry.

This is the most powerful argument that prohibitionists have in their armory. That is: "Our country operates under majority rule. The will of the majority is that gay marriage not be legal (Often prohibitionists go on to complain about the courts' overreaching activism in denying states the right to decide the issue of gay marriage for themselves)."

California's Proposition 8 and Florida's Amendment 2 are perfect illustrations. In both cases, the relevant legislation received a majority of votes (P8 won with 52%; A2 with 62%). In both cases the laws were passed according to the rules established by the citizens of each state.

Yet as an equalist, every sense of justice I have is violated by allowing the will of the people to subvert the liberty of homosexuals. Let me put that a different way: Every sense of justice I have is violated by allowing the will of the majority to subvert the liberty of the minority. Can we reconcile our dedication to the rule of democracy with our belief that homosexuals are entitled to equal rights? I think we can.

Let's turn once more to the founding documents, through which our forefathers and mothers spoke to our present predicament: "That they are endowed by their creator with certain inalienable rights." The founders were not just declaring independence. They were declaring that there exist, for each of us, rights which no person can give or take. Equality, they were saying, is not a principle to be decided by states, or the federal government; it is not something that can be denied to a minority on the basis of majority rule. Equality is a principle that runs through the fabric of human existence. It lives within our very being, independent of and indifferent to the rule and laws of man.

That is why the courts are so important. The people must be the instruments of governance. But in government, the people are bound by the constitution; and the courts' role is to decide when the people have violated that boundary and when they have not.

The movement to legalize gay marriage is not about a right to marry. It is about something deeper: the freedom to exercise a right to equal treatment under the law.

Majority rule is part of the nature of democracies and republics such as ours (often referred to as a democratic republic). But our Constitution was ordained to, among other things, "establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." The question which we must ask in approaching gay marriage is: "Does its prohibition contribute to, or violate, these aims?" I maintain that the prohibition of gay marriage violates these aims, and violates further the spirit of the Constitution. Such a violation cannot be permitted in our Union even when the majority of the people will it to be. Subverting the equality and liberty of a minority is not the majority's right. Rather, it is a violation of the rights our founders understood each of us to be endowed with.