I recently read an article by Bob Egelko in the San Francisco Chronicle on Chief Justice Ronald George, who wrote the decision which granted same-sex marriage for California gay couples. It was an in-depth story on the life of this man, and what led to his ultimate belief that equality for all people is a fundamental, constitutional right. One particular segment stood out to me.
In the article, Egelko outlines how George and three other California Supreme Court justices pulled from another marriage quality issue from history, interracial marriage:
George’s same-sex ruling relied heavily on the court’s 1948 decision on interracial marriage, written by a renowned liberal, Justice Roger Traynor. No other state’s court had ever recognized a constitutional right for interracial couples to marry, and the U.S. Supreme Court did not do so until 1967.
A lesson from that case, George said in the interview, was that laws denying “certain basic rights could not be justified just because of history and tradition.”
He recalled a trip with his parents to the still-segregated South as a teenager, when he was shocked to see whites-only signs on drinking fountains and restroom doors.
“It sensitized me to the fact there are minorities of all sorts of types who can be victimized by the majority,” George said. Protecting vulnerable minorities, he said, is “one of the purposes of the courts and of our Constitution.”
When I read the above paragraph, I had to stop and consider just what Justice George was really saying. Quite simply, he said that the Constitution guarantees protection for vulnerable minorities. This in itself is a hotly debated point, especially in regard to immigrants and sexual orientation.
When the California decision was announced, conservatives immediately decried “activist judges” who “defied the people.” Well, this is exactly what was said when Justice Anthony Kennedy’s decision was handed down in the landmark Lawrence v Texas decision. that struck down all of the sodomy laws in the US. They were “activist judges” (interestingly, both Kennedy and George were appointed by Republicans).
Both men and their respective majorities in their courts knew a simple fact: Sometimes, the people are wrong. The people were wrong to separate blacks and whites in the South. The people were wrong to deny basic civil rights. The people were wrong to pass laws banning the private sex lives of adults, and they were wrong to pass a resolution in California to ban same-sex marriage.
I heard a phrase not too long ago that illustrated this better than anything: the Constitution is a way to protect against the Tyranny of the Majority. I’ll define this phrase: oppressive rule by majority, where the minority has little or no rights.
This is a phrase that isn’t used very often, but when it is used, it’s profound. Alexander Hamilton warned against allowing this kind of “majority rules no matter what” mindset, and was one of a few men who knew just what the dangers were of a pure democracy. In fact, the dangers of a tyrannical majority were so clear to our framers, that they designed our constitution for a republic, not a democracy.
That’s right. The United States of America is not a democracy. It never has been. It is, quite simply, a republic. It is, however, a republic which includes a great many democratic elements, which is why there’s such a balance.
I won’t bore anyone with an extended civics lesson, but our government has three branches: executive, legislative, and judiciary. As most Americans know, the executive branch of the Federal government is headed by the President and his cabinet. The legislative branch includes both houses of Congress (the Senate and the House of Representatives). The judiciary branch has the Supreme Court at its highest level.
These three branches offer a brilliant level of checks and balances which has been the “great experiment” in world affairs, and has been an effective system since the Constitution was adopted back in 1787. It’s been amended only 27 times since then, most notably with the Bill of Rights in 1791, which includes the all-important First Amendment.
Even before the First Amendment, the Constitution did a great job of protecting against the Tyranny of the Majority, but most Americans felt like it needed to be crystal clear about individual rights. After all, what minority is smaller than the individual?
Just for fun, I’ll ask people to name at least three of the five protections of the First Amendment. Most people can name one or two. Three is a stretch. VERY few can name all five:
- Freedom of Religion
(Individual religious expression & a ban on state-sponsored religion)
- Freedom of Speech
- Freedom of the Press
- Right to peaceably assemble
- Right to petition the government
The first amendment is one of the most powerful and is easily the most important in the entire document, especially when in regards to the tyranny of the majority. The simple reality is this: the majority, while they might have the most numbers, might not always have the high moral or legal ground. In other words, the majority isn’t always right!
We learned this better than ever during the civil rights movement. Here’s a simple truth: civil rights would never have come if not for a handful of judges who took the law in their own hands. A lot of conservatives are quick to point out how the Civil Rights Act of 1964 was passed by a majority vote in Congress, so the will of the people can pass laws like this, they claim. However, that historic act would never have been passed if segregation hadn’t already been struck down by the Supreme Court with its historic Brown v Board of Education decision in 1954.
The only exception to this would be the Women’s Suffrage movement, which passed by legislative vote and popular vote, to be added to the constitution in 1919. However, I’m not really sure if women would be considered a “minority” by this definition. Repressed, yes. Minority, no. Especially today, where there are actually more girls born than boys.
So what kind of minorities might be oppressed? In the US alone, there are countless religious minorities (anything other than Christian), ethnic groups, national origin, racial minorities (especially African and Latino Americans), those with disabilities, and sexual orientation and gender identity.
It’s that last one that draws the most heated debate today, with the argument that a person’s sexual behavior is their own choice, and should not be allowed as a minority. Unfortunately, this argument overlooks the reality that a person’s sexual orientation or gender identity isn’t a “behavior,” it’s something much deeper, and is in many cases not a choice at all.
Other arguments against listing sexual orientation and gender identity to the list of protected minorities is that a person’s sexual orientation isn’t identifiable outwardly. A gay or lesbian person can’t be identified by their appearance like an African-American or a Latino-American can. While this is true, it leaves out one major point: A person’s religion is unquestionably a choice, and is guaranteed protections by the Constitution. Why shouldn’t a person’s sexual orientation – which may NOT be a choice – be included in these simple protections?
It’s this kind of argument that our constitution and government was formed to dismiss, with an effort to stifle a growth of a tyrannical majority. Our framers knew than as we know now that power corrupts. When a majority—of any kind—has power, then it can be corrupted.
Thankfully there are heroic men like California Chief Justice Ronald George and US Supreme Court Justice Anthony Kennedy who are willing to put an end to this kind of tyranny by declaring that all minorities are indeed equal, and should be treated as such.