"Sodomy and Civil Rights"

It is a day for law student responses.  Oklahoma law student, Nicholas Bender responds David Weiss' "Sodomy and Civil Rights" posted here:

"David Weiss defines sodomy this way: "Sodomy happens when any group uses their majority or their power to abuse and marginalize another group." He says this is what happened when people in California and other states voted to ban legal recognition of same-sex marriage.

To me, his argument seems faulty on several levels. First, he makes a huge leap in logic. He reasons that if people voted "yes" on Proposition 8, then they were using "their majority power to abuse and marginalize another group." It seems to me that voters could have been motivated by factors other than a desire to abuse and marginalize. For example, voters could have reasoned that the marriage relationship between a man and a woman is an institution that society has deemed valuable for many reasons, including for its ability to form the intimate mini-community on which society is built: the family. Amongst the many relationships in our society that might arguably contend for privileged status, the traditional marriage relationship has been selected as most worthy of promotion. Same-sex couples are, therefore, arguing not to be treated like the rest of the varied societal relationships that exist, but to be given the exceptional status that has traditionally been extended to opposite-sex couples. While certain rights can be granted to relationships that differ in form and function from the traditional marriage relationship, voters may have concluded that only marriage in the traditional sense should be incentivized to a degree greater than all other relationships because of the return to society on the investment. Now, whether one agrees or disagrees that families headed by wedded, opposite-sex couples provide the optimal basic conditions for a successful family is another issue. But certainly, voters could have drawn that conclusion, without notions of abuse or marginalization motivating their decision.

Second, Mr. Weiss' argument seems to attack the democratic project itself. Using Mr. Weiss' sweeping reasoning, one could argue that anytime the majority expresses it's will on a particular subject, then it is abusing and marginalizing another group (i.e. the minority). A democracy necessarily includes winners and losers. Voting decisions based on one's beliefs (even those grounded in religion) are not, and should not be, precluded in a properly functioning democracy. I guess I would ask Mr. Weiss to further define "abuse" and "marginalization."