As the court battles for the fate of California’s Proposition 8 come to a head with an imminent decision due from the 9th Circuit Court of Appeals later today, several states are once again building referendum and voter campaigns to either ban or allow gay marriage. As you well know, Proposition 8 is the voter initiative that wrote anti-gay discrimination into the California constitution to ban gay marriage. Now, more states are working through various laws of their own, including New Jersey, Maryland, Washington, Maine, and of course, South Carolina — the only remaining Southern state that doesn’t have a gay marriage ban in their constitution.
New Jersey Governor Chris Christie has promised to veto legislation that would enable same-sex couples to marry in his state. His reasoning is common for people who don’t get it: “let the people vote.” Or, “let democracy decide.” While this might be a popular sentiment among those who really don’t support same-sex marriage at all, the reality is this: The United States government is not a democracy. There are some things that we don’t get to vote on.
Before my readers go into convulsions on the notion, let’s recite the first few bars of the Pledge of Allegiance:
I pledge allegiance
To the Flag
Of the United States of America
And to the _____ for which it stands…
Pop quiz: what word goes into the blank? Here’s a hint: It’s not “democracy.” We are a republic. This means that our laws are not subject to the tyranny of the majority just because an idea is popular. As such, the idea of denying gays the rights to marry might be popular in many parts of the country — but it’s also wrong. The notion of stripping rights from a whole class of Americans just because we don’t like them flies in the face of the Constitution itself.
Why do you think the right wing is so damned determined to change our country’s most sacred document? They know it’s unconstitutional to deny same-sex couples basic rights and the right to marry. They know their “defense of marriage” laws run counter to the spirit of our country’s base of treating everyone equal under the law.
This hasn’t stopped “conservatives” from pushing to get gay marriage bans on every ballot in the country — in fact, it’s driven that push. They tap into every fear, every falsehood, and every bit of bias in the American voter to drive them to the polls and keep those horrible gays from getting married. After all, the “will of the people” must speak.
Sadly, every single campaign for banning gay marriage has been driven by archaic interpretations of the Bible (which does not define our government in any way, shape, or form), a genuine dislike for gays, outright falsehoods (which would crumble under even casual examination), and frequent discussion of various forms of gay sex (to bring in the “ick” or “shudder” factor).
MSNBC commentator and host Rachel Maddow summed up the reality succinctly and pointed to the 14th amendment which makes this clear:
But here‘s the thing about rights—they‘re not actually supposed to be voted on. That‘s why they‘re called rights. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
No state shall deny to any person within its jurisdiction the equal protections of the laws—even if lots of people in that state want to. It‘s not up for a vote. Rights are part of the deal if you‘re an American. That‘s why the Equal Protection Clause is in the Constitution. In this case, specifically, it‘s in part of the newly controversial 14th Amendment to the Constitution.
Rights are not supposed to be put up for a vote. They‘re not a popularity contest. They‘re supposed to be subject to a test of their constitutionality. That‘s why we have courts, not just to put people on trial, but to try the things the people say they want to be their laws. We try those things against the Constitution. And the Constitution restricts the things that Americans can make laws about so those laws don‘t infringe on our constitutionally protected rights.
Which brings up the necessity of judicial review. First established in the early 1800s, the doctrine of judicial review helps to bring balance to the mad dash of democratic abuse for the sake of what feels good at the moment. In the court room, there are no campaigns, talking points, or chants. Here, only evidence matters; testimony sworn under oath, and decisions based on pure fact and the very heart of the Constitution itself.
A classic example of cutting through the rhetorical fat is an exploration of testimony of the much celebrated Proposition 8 trial. There, behind closed doors, witnesses and experts testified both for and against same-sex marriage rights. Interestingly, cross examination of those who were called to testify in opposition of gay marriage — ended up providing the most compelling arguments for marriage equality:
[Founder and President of the Institute for American Values David] Blankenhorn was called as an expert witness by lawyers defending Proposition 8 against a constitutional challenge by two same-sex couples. He is an author and researcher who is not associated with any university. He earned a master’s degree in history in England, where he studied the history of labor unions.
Blankenhorn testified that he later worked as a community activist in low-income neighborhoods in Massachusetts and Virginia, where he became interested in the effect of fatherless families on children.
After testifying that marriage was designed for two heterosexual parents to bear and raise children, Blankenhorn said he decided during the last two years to support domestic partnerships for gays and lesbians as a “humane compromise.”
He said he previously had feared domestic partnerships would undermine marriage and discriminate against gays, but concluded that they were more legalistic arrangements than marriage.
Under cross-examination by David Boies, an attorney for challengers of the ballot measure, Blankenhorn admitted he knew of no study that showed children reared by gay couples fared worse than those raised by heterosexual parents.
Blankenhorn also conceded that same-sex marriage would probably “improve the well-being of gay and lesbian households and their children.”
This isn’t the only example of a same-sex marriage opponent cracking under oath in the Proposition 8 trial. The full transcript of the testimony is available.
David Boies, who was on the Gore side of the Bush v. Gore election debacle before the Supreme Court in 2000, teamed up with his then-opponent to fight for gay marriage. Boies is not a lifetime liberal by any means, and said why he got involved:
“…The very purpose of the Bill of Rights and the Constitution is to protect minority rights against majority voters. Every court decision that strikes down discriminatory legislation, including past Supreme Court decisions, affirming the fundamental rights to marry the person you love, overrules a majority decision.”
Sounds like Boies and Rachel Maddow need to have lunch. He did, in fact, team up with his Bush v. Gore opponent to take on Proposition 8, now in its final stage before it goes before the Supreme Court of the United States.
But let’s go back to the notion of voting for civil rights. Just for fun, I looked at a collective series of Gallup polls that showed the history of American support for interracial marriage. For the record, the Supreme Court struck down any prohibition of interracial marriage in 1967 with Loving v. Virginia.
At the time, according to Gallup, only about 20% of Americans supported interracial marriage.
Today, 84% of Americans support mixed-race marriage.
In contrast, 53% of Americans support same-sex marriage. The 2011 poll indicates that for the first time, a majority of Americans believe that gays should be able to legally marry. The state-to-state breakdown varies significantly.
But what if we were to vote on interracial marriage? If we did, then such marriages would not have been allowed until the late 1990s. We would have had to have waited until the second Clinton term to have legalized interracial marriage in the whole country if we were to vote on that issue.
Rights are rights. We don’t get to vote on them. But, we did.
Now it’s time for the courts to set things right.