August 5, 2010

A Farewell to H8? (Lessons in Democracy and Gay Marriage)

They’re not supposed to be voted on, that’s why they’re called ‘rights.’
Rachel Maddow.

On the first Tuesday in November, 2008, voters of California approved Proposition 8, outlawing gay marriage in the state. On August 4, 2010, 9th District Court Judge Vaughn Walker overturned Prop. 8.

In the days, weeks, months…hell, probably years…to come, we’re gonna be hearing a lot about how this decision subverted the American system of government by going against the will of the voters. And, if the workings of Democracy could be reduced to majority rule, that would be true.

As it turns out, however, there’s more to it: there’s a Constitution which guarantees citizens certain rights. And the reason these rights are written into the Constitution (mostly in the form of amendments) is not only to check tyrannical “big government,” as Fox News would have us believe, but also the tyranny of the majority. Judge Walker specifically argued that discriminating against gays and lesbians violates the equal protection and due process rights clauses of the 14th Amendment to the United States Constitution (that’s the amendment that officially ended slavery) (and the one that leading Republicans want to repeal) (go figure).

In other words, this isn’t a subversion of American democracy—it’s American democracy in action. And, one might say, American democracy at its best…kinda like what happened in 1967, when the U.S. Supreme Court struck down laws against interracial marriage, in the appropriately named Loving vs. Virginia decision, even though, a year later, Gallup polls showed that 70% of the population was still opposed…a considerably higher figure than current…or recent…levels of opposition to gay marriage.

The big question now is: will today’s Supreme Court have that kind of courage and integrity, or will it bow to the tyranny of popular bigotry?

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