Can one use the same arguments about the state's role, voter public opinion, and Constitutional guarantees concerning the death penalty as one has used concerning gay marriages? The principles involved in the arguments are similar. An amendment to the constitution vs voter opinion, public morality, and tradition, and the bible and.., ---- The death penalty is barbaric and it is always cruel and unusual punishment...so should we get rid of it all together? The rights of the defendants trump public opinion, which is fickle. The Constitutional guarantee against cruel and unusual punishment...should it be ignored if a state has a referendum where the majority of voters (even if only 49% of eligible voters, vote) decide they want to keep the death penalty?