Gay Marriage and the Tyranny of the Majority

(below) Another "enlightened perspective" on the Gay Marriage issue.

Right now, in a  federal court in San Francisco, a case is being heard entitled "Perry vs. Swartzenegger" that will decide the fate of the recent state proposition that banned same-sex marriages in California. This was accomplished by appealing to the majority of voters in America's largest state. 

Here is a brief introduction to the case, from the "Suite 101" legal website:

"On January 11, 2010, arguments in the Perry vs. Schwarzenegger federal court case began. The case was filed by two same-sex couples in May 2009 in anticipation of the California Supreme Court’s ruling regarding Proposition 8. The main issue in the Perry vs. Schwarzenegger case is whether or not the proposition violates the United States Constitution by denying gay and lesbian couples equal protection under the law.

"The court case is being heard by US District Court Judge Vaughn Walker, a Republican appointee who has a reputation for independent thinking. The head lawyers who are challenging the ban are Theodore Olson, a noted conservative lawyer who supports same-sex marriage, and attorney David Boies. This pairing is quite noteworthy as Olson and Boies argued against each other in the famous Supreme Court case of Bush vs. Gore that decided the outcome of the 2000 United States presidential election. The lawyer for the Proposition 8 Campaign is an attorney by the name of Andy Pugno.

"The case is certainly a hot-button one for individuals on both sides of the issue. In fact, many gay rights advocates themselves opposed the filing of a lawsuit, arguing that a precedent in this case that was not favorable for the LGBT community could actually hinder the cause of gay rights."

 

As the writer above denotes, this case is a risk--an upholding of Proposition 8 in California by this court, or the final arbiter of Constitutional Law, The Supreme Court, could set back the cause of equal rights for Gay Americans.

 

Other sates, including Oregon, have also rejected the argument that same-sex couples have the right to be called "husband and wife" or "spouse".  Some states have provided some protections through "civil union" designations, but as yet only Massachusetts allows gay couples to call themselves "married". 

In this matter, most all of the "Red State" (Conservative-dominated) states still refuse to recognize that gay couple have a right to marry. Therefore, for example, a same-sex couple in the state of Oregon could be denied the rights of parenthood, hospital visitations when one spouse is sick, insurance protection, or any other right heterosexual couples take for granted.     

    Alexis De Touqueville, who memorably observed American customs directly in his travels through the young republic in the 1830's, had this observation about the  will of a majority through the electoral process to put the squeeze on citizens  whose peaceful affiliations they found unacceptable.  It is found in Chapter 18 of his book "Democracy in America", where he contrasts the tyranny of monarchs and tyrants and that sometimes arbitrary and often fickle thing, the Will of the Majority:  

" The master no longer says: "You shall think as I do or you shall die"; but he says: "You are free to think differently from me and to retain your life, your property, and all that you possess; but you are henceforth a stranger among your people....You will remain among men, but you will be deprived of the rights of mankind. Your fellow creatures will shun you like an impure being; and even those who believe in your innocence will abandon you, lest they should be shunned in their turn. Go in peace! I have given you your life, but it is an existence worse than death."

The words "impure being" could apply to the modern debate all civil libertarians face in dealing with this issue.  It is clear that many are uncomfortable with the idea that gay couples should have real equality before the law.  The "one man, one woman" argument holds sway for the majority.  Yet, do the opponents of gay marriage forget that they are walking and voting in the "proud" tradition of those who fought to keep black children out of decent schools and to deny the rights of mixed race couples to be married? It took a decision by the Supreme Court in 1967, "Loving vs. Virginia", to overturn laws against mixed race marriages.  Before that, these people were the "impure" ones to perhaps 80 percent of the nation who opposed black-white marriages.  I see little difference between the two situations (race or sexual preference) in regard to marriage since gender preference has never been prove to be as arbitrary by science as it has by false rumours and rare examples.   

The plain facts are clear.  The judicial system exists in our Constitution for many reasons, but one of them is surely to save groups from tyrannical opinions if those opinions happen to be currently in the majority. It was no good waiting for anxious older white people in the South and other parts of America to recognize that blacks and whites could sit in the same schools, drink from the same water fountains, live in the same neighborhoods and marry according to love and taste, not by skin pigmentation.  These laws had to be stricken not by the legislatures of state's, but upheld by the Federal Judicial system. 

 

One hopes and prays that when the time comes, and it will, that when The Supreme Court hears this case --which likely would rule 5-4 amongst its nine members one way or another--  that The Chief Justice John Roberts Court will do the right thing in regard to expanding freedom and contracting worry and fear of bigotry on behalf of a segment of citizens.