You may not be gay, but you may be next

I wrote before about the Calif. Supremes heard oral arguments on the state's gay marriage ban. Though the Court hasn’t ruled yet (though they must by early June), those that ponder how the Court acted during those arguments think it doesn't look good for our side. One of the hot topics during that debate was whether civil rights denials can amend the constitution through simple majority or whether a much more rigorous process should have been used. This issue didn't arise in Michigan back in 2004 because, to enact amendments, there is no alternative to a simple majority vote.

I've wondered about the central question. If this isn't the time to demand the more stringent Calif. amendment method be used, when is? What kind of issue constitutes a "revision" to the constitution rather than an "amendment" if it isn't civil, unalienable, rights? That leads to…

Blogger Terrence Heath is bothered by that lack of a firm stance on civil rights and concludes that if the court lets the ban remain the result will be the death of civil rights.

His reason is the Court will be signaling that majoritarianism wins. That fancy word means that everything can be decided by a vote of the majority. The majority is always right -- no matter what -- because it is the majority. The majority decides what is justice. (For the moment we'll set aside the Fundies who insist that decisions by today's majority must be preserved for all time.)

This means there are no "unalienable rights" because the majority can take away anything it wants. Minorities can't turn to the courts or legislatures because their purpose becomes enforcing the desires of the majority. And that is ironic because if the court upholds the ban they make themselves irrelevant.

When the majority is always right, they become unwilling or unable to set limits on their supreme power. Without limits, power becomes tyranny. At the moment, the courts define tyranny. If the marriage ban is upheld, we may enter an age where tyranny of the majority becomes the norm. If you think that statement is overblown, two words: activist judges. Yup, many have already been complaining loudly that judges have been getting in the way of the majority.

Terrence, who is black, gay, and not Christian, is very aware how life has been made better because of the courts, the biggest being Brown v. Board of Education. Others are Roe v. Wade, Loving v. Virginia, Lawrence v. Texas. Don't forget the Civil Rights Act and the Voting Rights Act. What would life be like if these rulings could not have been made? What would life be like if an injustice is allowed to stand simply because a majority mistake it for justice?

As a civilized society we have decided it is better to settle our differences in the courtroom rather than in the street. Courts are a safety valve for social tension. They give the minority a voice, a chance at justice. Courts are a loud enough voice to be able to face the majority and say that might does not make right, the majority may be wrong, and commonly held ideas may be unjust.

Without the courts what options does the minority have? Either bloodshed in the streets (there goes our claim to be a civilized society), or a minority with a phenomenal capacity of patience. The minority must endure injustice while they engage in a public education campaign, which takes a lot longer. If majority rules many may decide to conveniently postpone any discussion of a contentious issue, even if they support the minority, until their party achieves majority status or they are no longer worried about maintaining majority status. And you know when that will be. (Though if unalienable rights are in question, so much for free speech and public education campaigns on a hated topic could simply be banned.) In the meantime, keep your head down and don't make waves.

Responders to the post note that if the Calif. Supremes uphold the ban they only make themselves obsolete, not the federal Supremes. However, that same terrifying precedent will be part of the majority's arguments when any minority takes their grievance to the federal level. Especially after the Bush years and their disregard for the constitution. Then again, the majority does have some nice things to say about reproductive rights, gun control, and gays serving in the military. Strange that Fundies refuse to allow majority rule in these cases.