Majoritarian Non Sequiturs

Unsurprisingly, especially in a conservative state like Kentucky, there has been significant pushback to Judge John Heyburn's ruling in the case of Bourke v. Beshear. In a state where 55% of the population still opposes same-sex marriage, many have reacted with confusion, frustration, and anger to the ruling that Kentucky's discriminatory marriage laws are unconstitutional.

That anger extends all the way to the General Assembly, where two Republican lawmakers in Frankfort have spoken out against the decision, using populist language familiar to anyone who has been following the nationwide embrace of marriage equality.

In a letter to Governor Steve Beshear, Representative Stan Lee of Lexington called for an appeal of Heyburn's ruling. The Courier-Journal quoted an interesting passage from the letter:

The majority of Kentucky citizens are fed up with the ever-increasing encroachment of the federal government into their lives.

Aside from the fact that judges striking down laws which prevent citizens from doing things is actually the opposite of "encroachment," focus instead on the appeal to the will of the people - "the majority."

That majoritarian sentiment also appears in a statement by Representative Tim Moore. He filed a resolution in the House demanding that the state spend a lot of money on an appeal that would likely be unsuccessful (assuming the Sixth Circuit applies the holding of United States v. Windsor in the same way every single court presented with the issue of same-sex marriage already has):

The laws of other states or the ruling of a federal court should not trump the will of a majority of Kentuckians.

Ignore, for a moment, Rep. Moore's rejection (or ignorance) of the Supremacy Clause of the U.S. Constitution. Instead, note that he also cites the "will of a majority of Kentuckians" as justification for his opposition to Judge Heyburn's ruling. By his and Rep. Moore's logic, literally anything a majority of Kentuckians supports should be free of any federal court oversight.

As I've already discussed, the U.S. Constitution includes protections against total majority control of government. James Madison himself warned of the threat faced by minorities at the hands of selfish majorities. The Bill of Rights was added precisely to protect everyone's basic rights from mob rule.

Simply put, mere popularity does not make a law constitutional. Perhaps some examples will help illustrate my point.

Some day, Kentuckians may realize that when white people are allowed to vote, they elect leaders like Tim Moore and Stan Lee. In an attempt to prevent future mistakes such as this, a majority of Kentuckians might vote to prohibit white people from voting. Let's say it's a big majority, like 95%, and the ban passes easily.

No matter how popular stripping white people of the vote may someday become, it would still be a violation of the Fifteenth Amendment. That Amendment clearly says, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race." It's very clear. It doesn't include an "unless a majority says otherwise" clause.

Obviously, that would be an unlikely hypothetical. Let's try another one anyway. Someday in the future, Kentuckians may grow weary of gun violence and enact, by a large majority, a total ban on private firearm ownership.

Even if a gun ban was supported by 100% of Kentucky voters, it would still violate the U.S. Constitution. The Second Amendment, despite its confusing, controversial language, would prohibit a gun ban such as this, no matter how popular it was.

One has to wonder how the rhetoric of people like Stan Lee and Tim Moore would change if constitutional freedoms they actually care about were threatened by popular opinion. Maybe someday the whims of straight, white, Christian men will become overwhelmingly unpopular, and laws will be passed actually stripping them of their Constitutional freedoms. Would they still invoke the will of the people if it was turned against them?