• Prop. 8 is a threat to American democracy? Um, no. Tuesday, August 24, 2010


    That’s the short response to a column over on Capitol Weekly that raises the specter of a “constitutional coup” by advocates of gay marriage, one of the odder pieces I’ve read about California’s Proposition 8, the legal challenge against it and U.S. District Court Judge Vaughn Walker‘s ruling that it is unconstitutional.

    The gist of the column by Mathew McReynolds, staff attorney for the conservative Pacific Justice Institute, is that the Prop. 8 ruling is bad because it means supporters of gay marriage will be able to sue their opponents into oblivion if they don’t recognize gay marriage rights. Further, “if citizens no longer have any say on one of the most hotly-debated issues of the day—if one judge’s opinion outweighs more than 7 million voters’ opinions—can we honestly still call ourselves a democracy? I think not. And if the majority of voters cannot be trusted on gay marriage, why trust them with other weighty responsibilities such as selecting a governor or, for that matter, the leader of the free world?”

    Apples and oranges. A judge upholding the right of all Americans to enter into marriage has nothing to do with the results for elective office. That argument is a chimera. The key to the issue is that the majority opinion in this country often has been wrong when it comes to recognizing the legal rights of minorities. Majority opinion is not law. It can help form law, but it is, under the Constitution, the role of the courts to determine whether laws mesh with our founding legal principals. In that role, the courts’ responsibility is to uphold the rights of all, even if the extension of those rights is unpopular with the majority.

    It hasn’t been that long since the majority opinion of this nation supported white-supremacist laws (unfortunately upheld, for a time, by the courts). It wasn’t until 1967 that the Supreme Court, in Loving v, Virginia, struck down state laws barring inter-racial marriage. That Walker — and, one hopes, the Court of Appeals and the U.S. Supreme Courtrecognizes marriage as a basic civil right affirms our democracy rather than threatening it, as McReynolds says. It will be a signal that our democracy, in fact, continues to mature.

    And yes, if laws are protecting the rights of minorities are flouted, then the courts are exactly the right place for minorities to seek redress. At its heart, our democracy is system that weighs the will of the majority against the specific rights of all. And in the end, with luck and clear-sighted court decisions, the democracy is made stronger.

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