California’s gay marriage ban could open the door to legal discrimination against unpopular groups if the state Supreme Court allows the voter-approved measure to stand, blacks, Latinos, Asians and other minorities said.
The November 4 vote, supporting an end to legal same-sex marriage in the most populous U.S. state, has caused a nationwide furor as opponents of the measure decry what they consider a civil rights violation.
…Legal scholars say the measure, which defines marriage as between a man and a woman, breaks new ground by limiting the courts’ ability to protect minorities.
“They could take away any right from any group,” said University of Southern California Law Professor David Cruz, who filed a brief in favor of gay marriage in an earlier case.
This is something I tried to convey, with varying degrees eloquence and success in my first ever appearance on bloggingheads.tv.
I’m kind of surprised that this angle isn’t used more in fighting these initiatives. There’s a basic principle our system of government recognizes: Might does not necessarily make right. That’s why it gives minorities an avenue — the courts — for seeking justice that is not governed by or beholding to the will of the majority, because not only can the majority be wrong, but what the majority wants may be the precise opposite of justice.
In an earlier post I wrote:
Remember that we used to live in a country where civil rights weren’t decided by majority vote. Remember that we used to live in a country whose founding documents cite “inallienable rights.” Remember that we’re may not be living in that country anymore, and even if your rights were not up for a vote this time around, they are almost certain on someone’s hit list.
You may not be gay, but you may be “next.”
It’s a warning I think anyone supporting these amendments should hear, because eventually everyone is in one minority or another, and with these initiatives the right is basically establishing that minorities have no rights that the majority cannot change, reduce, or repeal. In other words, there are no inalienable rights. So, your civil rights may not be up for a vote today, but if mine are, then so yours could be tomorrow.
This is something I’ve been writing about for a while, at least as far back as when a judge struck down Georgia’s first anti-gay marriage law.
I’m rather amazed, actually. But not naively hopeful. The judge’s wise words will soon be lost in the hysteria almost certain to ensue. Rest assured that the proponents of the amendment will mount another attempt as soon as possible, this time maybe more inline with the procedural guidelines, and the overwhelming majority of Georgians will turn out to vote for it again. They’ll turn out because they won’t get the overarching message in the judges comments. Or at least I have no faith that the majority of the people in the state of my birth will even bother to try get it. But for what it’s worth, let’s repeat the important bit just for effect.
However, the test of law is not its popularity.
In other words, the judge is reiterating a core principle of our entire system of government, and not just the justice system: might does not make right. Just because the majority — even the overwhelming majority — wants something doesn’t mean that’s what should happen, or that what the majority wants is even right. We live in a democracy yes, but it is not yet an absolute democracy.
An absolute democracy, which means unlimited majority rule, is incompatible with capitalism and freedom. This is so because capitalism rests on the principle of individual rights. In an absolute democracy, rights would really have no legitimate meaning because they could always be voted away in the next election. When most people think of democracy, they usually mean a constitutionally limited democracy. The function of a limited democracy is to decide who held political power and how that power is specifically exercised, but what that power is should be strictly defined and limited in the constitution. Individual rights would not be subject to vote.
Ours is a democracy that tempers majority rule and protects the rights of minorities because not everything is up for a majority vote. And there’s a pretty good reason why, if you stop to think about it.
It is easy to see why a republic is more desirable than a democracy. In an absolute democracy, the majority has absolute power over every aspect of everyone’s lives. While this might be fine while your group is in the majority, if the majority sways to the other side you are at the mercy of someone else’s whim. The only way to keep everyone secure from the abuse of power is to limit the amount of power that exists in the first place, through the establishment of a republic. Our founders knew this, and not once does the word “democracy” appear in the Constitution.
As absurd as it may sound, in an absolute democracy if someone were able to convince the majority that the practice of slavery should be revived, and the matter put a vote Americans would be bought and sold as property again. If the majority became convinced that women shouldn’t have the vote, Hillary Clinton and Kay Bailey Hutchison would be on their way back the kitchen. Think the majority could never be convinced of anything so absurd? How many were convinced that the U.S. was attacked by Iraq on 9/11? Hysteria ruled then, and believe you me it will rule now in Georgia as it did when the amendment was passed in the first place. The judge also pointed out that the amendment nullified those voters who oppose same-sex marriage but aren’t entirely opposed to some legal rights and recognition for same-sex couples.
There’s also the consequence of rapid social change(via the courts) vs slow social change (changing majority opinion): the former causes (sometimes lasting) social discord, but the latter requires the minority to continue enduring injustice, indefinitely and without remedy.
Slate included my previous post in its coverage of reaction to the New York appeals court ruling on same-sex marriage. I’m glad they did because it brought to my attention Nick Gillespie’s post over at Reason.
I’m sympathetic to the idea that deciding issues such as this one via legislatures minimizes social disruption and backlash… Yet it always seems to be folks who are not in the minority that advance that sort of argument. It’s easy to counsel gays who want to get hitched to hurry up and wait if you’re not gay, or to sign on to a status quo social contract that gives you the shit end of the stick if you’re not gay. Which is not to say the courts should be deciding all manner of social policy; it’s just to raise a point inspired by the judge’s refusal to predict what future generations will think down the line (especially since it seems absolutely certain to me that future generations will have absolutely no problem with gay marriage).
Y’know something? He’s right. And I’m embarrassed that I didn’t consider that point myself when I was trying to put a more positive spin on it.
Also, I’m embarrassed that I didn’t get it the first time because of the number of times I’ve railed against slow social change for the exact same reasons that Nick mentioned in his post, and because it underscores a point I made in my majoritarianism vs. equality post earlier this week.
First, Nick’s exactly right that the “go slow” approach winds up meaning that people have to suffer discrimination much longer, and without remedy. In that sense, the only people who benefit from that approach are the people who want to discriminate, and people whose sensibilities won’t be disturbed by a change in the status quo (because they already benefit from the status quo). It means more Laurel Hesters, because it may take lifetimes to legislate same-sex marriage state by state; time in which our families will continue to suffer the consequences of lacking the rights and protections of marriage. But at least the rest of the country won’t have to be “uncomfortable.”
Like I said before, the judicial route is an important and valid part of any strategy to achieve equality; just as valid as the legislative route and with one clear benefit: it can rapidly alter social policy to give families rights and protections they’d otherwise lack for decades more, and offers them a way to remedy discrimination when they come up against it rather than simply having to live with it. In other words, the courts can dispense justice with a shovel rather than a teaspoon.
Are there limitations to this strategy? Sure. The one thing the courts can’t do is change people’s hearts and minds. The court can say that you don’t have the right to discriminate against me and my family, and that there may be penalties for doing so, but it can’t make you like me or my family. Just like when previous civil rights rulings came down; the legal landscape of rights and protections shifted, but the rulings didn’t do anything to decrease racism. (In some cases, though, they did jump start the legislative process.)
Did they cause some unrest and social upheaval? Yes. But people also had opportunities they wouldn’t have had otherwise, and legal remedies against discrimination they didn’t have before.
Of course, it’s basically what Martin Luther King, Jr. discovered in Why We Can’t Wait .