I apologize for the length of this post, but the subject demands it. I have been paying too little attention to this blog of late trying to keep up with the semester’s demands, but the relevance and import of this issue is too much to sit on without comment.
In a 4-3 decision, the Connecticut Supreme Court has ruled that same sex couples can no longer be denied the right to marry. The decision has caused an outcry about “activist judges” who are “usurping the will of the people.” The Norwich Bulletin editorial (People, Not Court, Should Decide Policy) is typical. “Should four people be establishing the state’s public policy? We think not. . . . [T]hat policy should be guided by the will of the people.” All this sudden concern for democratic principles is, at best, misguided and, at worst, misapplied by those with a conservative social agenda.
Perhaps the Bulletin editorial board simply doesn’t understand how a legitimate democracy works. In The Bulletin’s world, if you have five kids on the school playground, it is perfectly acceptable for 4 of them to vote and by “the will of the people” decide to beat up the fifth kid and steal his lunch money every day. Luckily, there is an entity (in this case the teacher) who is charged with the obligation to protect the minority against this kind of bullying and who also carries the authority to reverse the action.
This nation’s founding principles were forged out of a healthy fear of and dislike for the tyranny of the majority. A strong case may be made for the proposition that the minority that the drafters of the US Constitution sought to protect were the influential, yet numerically small, commercial class of merchants and businessmen. After watching Daniel Shays and his rabble of farmers (“the people”?) rise up against the merchants in the Confederated State of Massachusetts and a legislature full of farmers and laborers in Rhode Island pass laws issuing paper money, the founding fathers were genuinely concerned about what other mayhem a passionate and motivated majority might visit upon a righteous minority.
The judicial branch of government is the only one which, by design, does not answer to the majority will. In the Federal System, judges are not elected and they serve for life. Even the basic civics class curriculum teaches our students that this system is specifically designed to insulate the judges from the influence of politics (again, the majority will). Whether by design or not, we have come, as a democratic society to expect the courts to uphold the rights of the weak, the disliked, the marginalized, even the amoral from the overreaching bullying of the tyrannical majority.
Therefore, the Connecticut Supreme Court has done exactly what it is supposed to do – ignore the will of the majority and make a decision based on reason, rationality, human dignity, and in no small part, centuries of Anglo-American Common Law.
Perhaps “The Bulletin” and similar complainers understand democratic principles perfectly well but are not above hijacking democratic style language in order to enhance a conservative social agenda. Let’s turn the call for the “will of the people” onto a different subject – gun control. Most (the majority) of people in Connecticut are in favor of strong and meaningful restrictions on gun ownership. Suppose that the Connecticut legislature passed a law that said that people could own guns, but could not keep them in their homes. That is, you could store your gun in a locker at a shooting range, and could use it there, but could not possess it elsewhere. (You would still have the right to own a gun - like same sex couples were said to have had all the rights of marriage under the civil union law.) Most likely, a gun owner would file a law suit and go screaming to the court to overturn the “will of the people” and protect their fundamental rights of gun ownership. All the concern about democratic principles would shift from “will of the people” to protection against “tyranny of the majority.”
Now, those paying attention will point out that the U.S. Constitution, as recently interpreted by the US Supreme Court, guarantees the right of gun ownership in the Second Amendment. Therefore, in deciding the gun case, the judges are not being activists, but rather strict constructionists. There is some merit to this distinction and it points out the difficulty in finding applicable analogies to other situations where there is a disconnect between the “will of the majority” and “the fundamental rights of humanity.” Usually, the majority respects fundamental rights. Sometimes they do not.
The obvious example of the latter is our nation’s long and tortured history of discrimination against non-whites. When the US Supreme Court ordered southern public schools desegregated in the 1950s, that decision was very unpopular with the majority in the southern states. The “will of the people” was to resist enforcement of the Court’s decision with violence which was overcome in several instances only by calling in Federal troops.
But for some reason, those opposing gay marriage do not recognize marriage as a basic civil right which is being denied to same sex couples. The argument is often made that this is a claim for special treatment – “extra rights,” perhaps. That argument was deflated 40 years ago, again, by the US Supreme Court. When the “will of the people” in Virginia criminalized the state of marriage between a white person and a non-white person, the Court threw off the yoke of majority tyranny and struck down the law in the case of Loving v. Virginia. The Court affirmed:
Marriage is one of the "basic civil rights of man[kind]," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. This is strong language to make a strong point. The right to marry is a fundamental civil right and, therefore, must be protected by a judicial system charged with the authority to do so in the face of tyrannical “will of the people.”
It would be less than thorough to wrap up this discussion without mentioning religion. Obviously, the free exercise of religion is another dearly protected individual liberty. Therefore, churches, such as the Catholic Church, are, and should always be, free to refuse to sanction same sex marriages in their churches (as they presently eschew civil divorces). However, marriage is in the first instance a civil matter with corresponding important civil and secular meaning. There are two separate and distinct realms of marriage. Churches have no business in dictating the civil effects of marriage or any other secular aspect of relationships. If a person because of his or her religious beliefs does not wish to have a same sex marriage, then he/she should not have one. However, the protected free exercise of religion does not extend to include the freedom to infringe on the basic civil rights of others.
I cringe every time I read another diatribe against “activist” judges, because it is certain to be couched in a call for adherence to “democratic” principles by people who either do not understand democracy or are so ethically challenged as to manipulate the language of democracy to promote a specific conservative agenda. The latter group has no ideological reverence for democratic principles and will abandon them whenever expedience requires. I resent the hijacking of language of democracy under these false and manipulative pretenses. It is this latter group that is promoting support for a ballot question that will appear on this November’s ballot to call a Constitutional Convention in Connecticut. Their claimed goal is to “return democracy to the people.” From where I stand, they are bullies out to steal everyone’s lunch money. Don’t be fooled by their thinly veiled call for democracy. To quote the President, “They hate our freedoms,” and they want you to empower them to take our rights away from us. Thank goodness for judicial activism!
