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

Via Jay Winston
on Aug 4, 2010
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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?


About Jay Winston

Jay S. Winston, founder and proprietor of Yoga for Cynics (http://yogaforcynics.blogspot.com), has a PhD in English, making him the kind of doctor who, in case of life-threatening emergency, can explain Faulkner while you die, is currently (semi-)(un-)employed as a freelance writer and editor, teaches creative writing to homeless men, tutors recovering addicts in reading, was recently certified as a Kripalu yoga teacher, gets around mostly by bicycle, is trying to find an agent for his novel, resides in the bucolic Mt. Airy neighborhood of Philadelphia, State of Mildly Inebriated Samadhi, U.S.A. and, like most people who bike and practice yoga, used to live in Boulder.


6 Responses to “A Farewell to H8? (Lessons in Democracy and Gay Marriage)”

  1. Kara Noel says:

    That the Equal Protection Clause should be applied in accordance with the will of the majority is shockingly stupid. Read the opinion. These guys actually proferred "discrimination" as a legitimate state interest. Apparently they are not aware of the fact that that is the ONLY interest that doesnt pass rational basis testing.

  2. Kert says:

    Thank you for writing this.

  3. strayyellardawg says:

    Just an FYI…. the judge that overturned Prop 8 was appointed by Republicans. And the lawyer that argued the case was also Republican.

    It is really important to be clear about why one disdains another.

    Just saying.

  4. Kara Noel says:

    Judge Walker overturned it because the arguments presented by the state were so poor that there was no other constitutionally viable choice. For him to do otherwise *would* have been political activism. Dude can't win.

  5. Kara Noel says:

    For anyone who would like to read the opinion: http://lawprofessors.typepad.com/files/35374462-p

  6. […] the latest developments around California’s Proposition 8, I can’t help juxtaposing the vitriol here in the US with the acceptance, even embrace, of civil […]