You could probably guess which conclusion each side wants the court to take. So far, various reports seem to indicate that the justices will uphold Prop 8, but at the same time, recognize existing same-sex marriages.
By posting this, I don't mean to set off another discussion on whether gay marriage is right or wrong. Here's my question: does it bother anyone else that this issue seems to suggest that any right can be taken away by any group through a simple majority on a ballot measure?
In the LA Times article on the current hearings, there was a passage describing an exchange between Ken Starr (scrub, rinse, repeat) and one of the justices on the court:
Asked by Corrigan if the people's power to amend the Constitution extended even to changes deemed "unwise," Starr said it did, and that it remained up to the people to decide what was or wasn't a wise amendment.So listen up, people: if you want to take away the rights of gay people or racial minorities or journalists or anyone else you don't agree with or simply don't like, have at it. The Constitution? Checks and balances? Whatev. Do what you will because your power is unlimited.
"It's not for another branch to say otherwise?" Corrigan asked.
"Absolutely," Starr told the justices.
Tyranny of the majority was a common point of discussion among the framers of the Consitution. In 1788, James Madison wrote in a letter to Thomas Jefferson: "Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents." And here is Madison again, in Federalist #51: "It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."
I hope we can heed those pieces of warning and advice. Women's suffrage, interracial marriage, school integration—take your pick. It's scary to think where this country might be today if a majority of voters, with no checks on their zeal, were able to sacrifice the rights of others.
6 comments:
What? You are not on board with something Ken Starr is doing? What if it were Johnny Cochran? Would you be on board then?
I think the problem here is that people don't see this as a right. Huntsman is now advocating for domestic partnership in Utah--so what happens then? It is one thing to reverse something that is a perceived right, but quite another entirely to bestow it.
@Flem
Ouch! That was supposed to be sarcasm, right? In either case, I won't hold it against you. ;)
It’s true that many people don’t consider gay marriage a right. I understand that. But legally speaking, it’s been established by the courts that marriage itself is fundamental right — and of course, in most states, a right limited to a certain group of individuals.
And so last year, when the California Supreme Court ruled to expand that right to include gays and lesbians, gay marriage was a right in this state that was overturned by Prop 8.
All I’m really asking is if it’s fair to say that the bar for constitutional amendments is too low in California. The chief justice in the Prop 8 case made an interesting note: California has amended the state constitution 500 times since 1911. 500! In comparison, the U.S. Constitution has been amended only 27 times over the course of 200 years.
I just realized that I left out a "t" in the word "Constitution" in the original post. Terrible. Don't tell my employer.
@Lauren
When you wrote "500!" that was an exclamation not a factorial correct? Because if we've amended the constitution 500 factorial times that would really be a lot. (Lame math joke I know)
I do agree though that it seems ridiculous that a simple majority is all we need in California to amend the constitution. What's the point of a constitution if it can be changed by any majority mob with pitchforks?
The next constitutional amendment in California (after the reversal of Prop. 8) will be to declare that smoking pot is a human right.
@TJ
It was nice of you to consider that I might know what "factorial" means or that such a thing is denoted by an exclamation point.
Is it sad to have conversations with each other in the comments section of our own blog? I almost feel like we're cooking the numbers to make ourselves seem more popular than we really are.
And actually, your pot theory doesn't seem too far off. I saw a recent poll showing that 41% of Americans support the legalization of marijuana—that's up from 34% in 2002.
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