DOMA and Prop 8: A Lesson in Civics

With America's, and perhaps most of the world's, attention on the United States Supreme court this week, we will get an answer to a question that most Americans only vaguely understand:  "How can the vote of the majority be set aside?  The people have spoken, how can an unelected court go against public opinion, one enshrined in a majority vote?"  That, in a nutshell, is the basis of the frustration for those who conceived of and fought for California's Proposition 8.

Here's a recap of how the amendment  has fared.

Proposition 8 - which, for California only, defines marriage as between one man and one woman  - passed by 53% of California voters in 2008.  The United States District Court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010, ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution. On February 7, 2012, in a 2–1 decision, a Ninth Circuit Court of Appeals panel affirmed Walker's decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional. On December 7, 2012, the Supreme Court granted the proponents' petition for certiorari, which will be heard on Tuesday March 26, 2013. The Supreme Court Justices are expected to issue their ruling pertaining to the constitutionality of Proposition 8 by late June 2013. The ruling by the US Supreme Court may set precedent not only in California, but nationally.

Prop 8 passed by a 4% majority only to have the Ninth Circuit Court of Appeals put it on hold.  The eventuality is strong that the US Supreme Court may make it null and void with the attendant possibility that prohibiting same-sex marriage may become unconstitutional in every state in the USA.

A blogger voiced his profound anger not long after its passing.  Here is a comment to it:

"Those are some mighty strong words and accusations you're tossing around based on the CA government (and law) following it's defined process for letting people participate in a democratic republic. What do you prefer - the CA supreme court tossing out the results of a vote presented to the entire state? That borders dangerously close to very non-democratic governmental ideas."

So, it's "non-democratic" for a court to toss out the majority's vote.  As a Californian of long standing, I bear witness to many conversations that suggest that this notion is wide spread. This commentator got one thing right, we are a democratic republic.  In a pure democracy, as the saying goes, 51% of the people could vote to cut off the heads of the 49% and it would be legal (and done!). This notion became encapsulated as "the tyranny of the majority."  Great thinkers from Plato to John Stuart Mill and Tocqueville warned us of this and provided several ways to insure that governments would not be capable of such mendacity. Two are enshrined in the U.S. Constitution: separation of powers and representative government.

This was not lost on the plaintiffs bringing the case to the Supreme Court. “If we've learned anything through this journey, it's that when the minority rights are being oppressed by a majority the court is supposed to step in, and some times it's not always popular for them to do so,” Jeff Zarrillo said. “We would expect the court to step in and right these wrongs." Exactly.  This is the proper recourse when minorities are pushed around by the majority.

The fact that we have a constitution at all is the most important defense against tyranny. The cry we hear so often, widely credited to John Adams, “We are a nation of laws and not of men,” is another way of saying, we are a constitutional republic.  Men and women don't tell us what to do, our Constitution does.  What is going on this week at SCOTUS is nothing more or less than laws deciding our fate.  (I am not so naive as to believe that the Court can be so objective as to rule out sentiment, prejudice, and other human considerations, but trust that they do their best to hold them at bay.)

This basic American value was clearly illustrated this weekend on "Meet the Press." Here's a snippet of host David Gregory's interview with David Boies, who is arguing the case against Prop 8 tomorrow.  Gregory  pointed out all the states that currently have bans on same-sex marriage and asked , "Aren't you effectively asking the Court to say, with one stroke of the pen, we're going to invalidate what those states have done?"

Replied Boies: "Every time the Supreme Court makes a constitutional decision, it’s making a decision that certain fundamental rights are too important to be left to the ballot box. We've done that with race, we've done that with women; we've done that with every discriminated class."

So the next time you hear someone say that "the courts have usurped the people's will" one more time, gently remind them that the very fact they do this is precisely because of "the will of the people."  It's called the Constitution of the United States.