Taking it to the People

Today, the Courier-Journal reported the results of a Bluegrass Poll that shows fifty-five percent of Kentuckians still oppose same-sex marriage:

Most Kentuckians still support a state ban on gay marriage, but their numbers have declined significantly from a decade ago when an amendment to the state constitution banned civil unions and limited marriage to a man and a woman.

In 2004, opposition to same-sex marriage in Kentucky was as high as seventy-two percent. Indeed, opposition has significantly declined over the past ten years, and a significant chunk of Kentuckians (ten percent) still don't have an opinion.

Opponents of marriage equality, especially in so-called "red" states like Kentucky, place a lot of emphasis on poll results showing a majority against same-sex marriage rights. Those who support equality would defy "the will of the people," according to proponents of inequality. For example, Martin Cothran, a member of the Family Foundation of Kentucky (who filed a brief of amicus curiae in the case of Bourke v Beshear) makes a predictable argument:

Advocates of same-sex marriage have always accomplished their agenda through political court decisions, rather than taking it to the people, as we did.

"Taking it to the people" is another way of saying "whatever the majority wants, the majority should get." Generally, that's how a democratic society works. It's a popularity contest. When a disputed issue arises, the people cast votes (or their representatives cast votes), and whichever side gets the most votes, wins.

But in the United States, the will of the majority is subject to checks on its power. The Framers of our Constitution recognized the threat of run-amok majorities, prone to stomping on the rights of unpopular minorities. In June of 1789, James Madison stood before a fledgling Congress and argued in favor of adding a Bill of Rights to the U.S. Constitution:

The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.

1 Annals of Cong. 437, June 8, 1789. Madison recognized then what remains all too clear more than two hundred years later - majorities do not always have the best interests of all citizens in mind when they vote or appoint representatives. But the basic, fundamental rights of all people deserve protection, even if some people happen to join unpopular political groups,  have unpopular physical or sexual characteristics, or make unpopular lifestyle choices.

The Bill of Rights protects certain specific rights from government interference. These include the right to free speech, free association, free exercise of religious belief, the right to due process, a jury trial, and the right to be let alone unless reasonably suspected of committing a crime. But the Bill of Rights does more than just declare a general concept of liberty. In 1943, the U.S. Supreme Court declared:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (U.S. 1943).

Among the "other fundamental rights" referenced by the Supreme Court is marriage. Our Courts, from the lowest state court to the highest Supreme Court of the United States have repeatedly declared that marriage is a fundamental right for all people. While the states get certain discretion to limit who may legally be married (like children and first cousins), they cannot limit the right to marriage in violation of the U.S. Constitution.

The Fourteenth Amendment of the U.S. Constitution demands that state laws must apply equally to all citizens, and those laws, at the very least, must not draw irrational or unreasonable divisions between people. They must not be motivated by hate or animus. If a state passes a law which discriminates between certain groups, it has to have a good reason to do so. And if a state law discriminates against a group which has historically  been treated unfairly, the state has to have an even better reason - a compelling reason - to justify it, and the law has to be very strictly worded as not to infringe on other groups or rights beyond the scope of that compelling reason. Mere popularity isn't enough.

The legal challenges now facing same-sex marriage laws, such as Kentucky's statutes and constitutional amendment prohibiting recognition of valid out-of-state same-sex marriages, are based on the principles articulated by the U.S. Constitution. And even in states as conservative as Iowa, Utah, and Oklahoma, courts agree: there is no good reason to prohibit same-sex marriage. Every reason states have come up with so far has failed to justify the blanket restriction of marriage to one man and one woman.

Gay marriage opponents, such as the Family Foundation of Kentucky, deride judicial opinions they disagree with as "political." But there is nothing more political than a majority vote. Appealing to the will of the majority is pure politics, and relying on majority sentiment to install and enforce limitations on the Constitutional rights of minorities is an abuse of the political process. And it's no coincidence that those most likely to appeal to majority sentiment are members of that majority.

Consider an analogy. What if a majority of Kentuckians supported reinstating African American slavery? Would that be okay simply because the issue was "taken to the people" and a majority of them supported it?

Maybe you think the slavery analogy is too much. What about school segregation? What if a majority of Kentuckians wanted white children and black children to be separated and attend different schools? Would that be okay? If not, why not? Was the U.S. Supreme Court wrong to prohibit racial school segregation in 1954?

And what about interracial marriage? Prohibiting blacks from marrying whites was still popular in some states when the Supreme Court declared it to be unconstitutional in 1967. Was the Court acting "politically" and wrongly defying the will of the people in that case? Maybe you think so if you're a white person who has never fallen in love with a member of a different race, but what if you aren't?

What if a majority of Kentuckians supported prohibiting Christians from getting married? Obviously that's unlikely in a state like Kentucky, but just pretend for a moment. Would the state, simply because more than half of its voting citizens supported it, be allowed to restrict such a right? What if the law passed by a majority of voters declared that Christians, and not anyone else, had no right to get married at all, no matter what the Constitution said? Would that be wrong? Would a court be right to step in and strike that law down?

Our Constitution protects the rights of all. Therefore, it sometimes runs up against the will of majorities who would infringe or reduce the rights of some. Simply because members of a minority are unpopular does not mean their rights may be trampled on or ignored.

All Americans should acknowledge and support the critical protections our Constitution provides to everyone. After all, you never know when you'll find yourself staring down the barrel of popular sentiment turned against you.

UPDATE (Feb 9, 2014): The New York Times published an article profiling the increased crackdown on homosexuals in Nigeria. The article discusses the details of the Shariah law system, particularly in the northern half of that country, as well as the public sentiment that emboldens it.

A key excerpt:

The acting foreign affairs minister, Viola Onwuliri, recently praised the law as “democracy in action,” and suggested that Western critics were hypocrites to promote democracy and then complain about a law that the populace supports. In a Pew Research Center survey conducted last March, 98 percent of Nigerians said they do not believe society should accept homosexuality.

“Every culture has what they regard as sacrosanct or important to them, and I don’t believe what our president and lawmakers have done in that respect is contrary to our culture,” former President Olusegun Obasanjo said Thursday in an interview. In 2004, while he was president, he told African bishops that “homosexual practice” was “clearly unbiblical, unnatural and definitely un-African.”

If nothing else, Nigeria should serve as an example to all who would prefer that majority sentiment be allowed to control even when the basic freedom and survival of minorities are at stake.