Tyranny of the majority is a part of democracy

Today the Calif. Supremes heard oral arguments about whether the gay marriage ban in the state constitution was proper and should stand. The technical issue for them to decide is whether the ban is an amendment or whether it is a fundamental revision, requiring a much more stringent approval process than a simple voter majority. Of course, it is never that simple, and arguments to the court didn't restrict themselves to that point. Along with that question is whether the 18 thousand existing same-sex marriages will stand or whether they will devolve back to being domestic partnerships.

The justices now have 90 days to publish their ruling. In the meantime there is lots of speculation based on how justices acted during today's questioning. And the general consensus is: It doesn't look good.

The L.A. Times reported that the ruling could come as early as tomorrow. The paper claims the ruling has been written (perhaps standard practice?) and oral arguments will only result in tweaking the details. That could be to do such things as to specifically address some of the points brought up during orals. The justices may have even officially voted on the ruling. The guess is that the ban will be upheld, yet the existing gay marriages will be allowed to remain.

The court activities brought out large and large numbers of demonstrations across the state last night. There was even a jumbotron set up outside the courthouse so that a crowd could watch the proceedings. It was also netcast, but I didn't watch.

The reason why it appears to not look good is based on the actions of one justice. Justice Joyce Kennard voted for permitting gay marriage last year (in a 4 to 3 decision), but when the issue of overturning the ban came before the justices she voted against hearing the case. That tags her as a swing vote. At today's hearing she seemed "aggressive" towards those challenging the ban. The difference appears to be that in both cases she was following the constitution and this year the constitution is different because of the amendment. She said that gays were not left with nothing. They still have a bundle of rights under California's domestic partnership laws. And gays have the right to present a canceling amendment of their own for voter approval. She said the court must choose between "two rights … the inalienable right to marry and the right of the people to change the constitution as they see fit. And what I'm picking up from the oral argument in this case is this court should willy-nilly disregard the will of the people." Willy-nilly?

Only two justices gave a definite impression of overturning the ban.

Chief Justice Roland George zeroed in on the crux of the argument. The original question of amendment or revision is because the authors of the Calif. constitution knew some things should not be subjected to the tyranny of the majority, unless you had a really big majority and took the effort to go through extra hoops. So much of the argument was about how far tyranny of the majority can go. Put another way, does that amendment/revision clause have meaning and under what circumstances must it be invoked? Or is it in the constitution only for show? The Michigan Supremes determined that the gay marriage ban also bans domestic partner benefits because they are similar to marriage and, by golly, those extra words in the constitution are there for a reason and we're going to enforce them. It is now time for the Calif. Supremes to make the same kind of decision.

So Justice George debated Ken Starr (yes that Ken Starr, the one of Monica Lewinsky fame) who presented the bigot side of things. Starr claims that voters have the right to amend the constitution with a simple majority any way they want, including over "things that tug at the equality principle." George asks, what about if we were voting on whether gays have no right to adopt or form families? Starr says yes. How about whether we were voting on removing the right to free speech? Starr says yes. Scary dude. George didn't ask what if the vote was to ban your marriage? Or your right to adopt?

Alas, there are many people who believe as Starr does, even about free speech. If the majority wants to impose some tyranny on some minority then, by golly, this is a democracy and that's how we do things. Which means there is no such thing as a universal human right. All you need is to convince enough of your pals to impose whatever you want. Leading up to this debate many progressives were making this very point. If that "revision" clause means nothing (and it might not), then the rights of immigrants, blacks, Latinos, and any other bogeyman the majority wants to conjure are subject to the whims and bigotry of the majority.

Justice Ming Chin went back to an argument in last year's ruling. The justices said we are required by equal protection clauses to make gays and straights equal in terms of the fundamental right of marriage. It would be difficult to not allow straights to use the term marriage, so we have to give it to gays, too. Now with the ban in place, we can't give that word to gays, so Chin asks perhaps we should take that word away from straights? The state would recognize domestic partnerships for everyone and religious institutions could do whatever they wanted with marriage. Ken Starr did not like that idea.

Justice Chin didn't say (but others caught) that his remedy has consequences. If Calif. recognizes no marriages, what does one check on their federal income tax forms? Will that prompt a hasty repeal of federal Defense of Marriage? Perhaps a hasty repeal of the marriage ban? Perhaps a law that says "A Calif. domestic partnership is the same as marriage everywhere else." Perhaps justices who like this idea would be recalled?