Tuesday, May 26, 2009

They may not have won what they think they won.

Are you tired as I am, of the mob rule proponents? You know, the ones who say "majority rules!" It's pretty clear that they are lacking some fundamental understanding of our Constitutional democracy. The courts and the Constitution are essential to protect the rights of the minority from mob tyranny. This is why the minority consents to be governed.

There is a US State Department site that explains this concept, for those who have a problem grasping it, from a document called Principles of Democracy.
On the surface, the principles of majority rule and the protection of individual and minority rights would seem contradictory. In fact, however, these principles are twin pillars holding up the very foundation of what we mean by democratic government.

• Majority rule is a means for organizing government and deciding public issues; it is not another road to oppression. Just as no self-appointed group has the right to oppress others, so no majority, even in a democracy, should take away the basic rights and freedoms of a minority group or individual.

• Minorities – whether as a result of ethnic background, religious belief, geographic location, income level, or simply as the losers in elections or political debate – enjoy guaranteed basic human rights that no government, and no majority, elected or not, should remove.

• Minorities need to trust that the government will protect their rights and self-identity....

• Democracies understand that protecting the rights of minorities to uphold cultural identity, social practices, individual consciences, and religious activities is one of their primary tasks.

So, let's be clear. The California Supreme Court has made a decision that these Principles of Democracy do not apply in our state. They have upheld the tyranny of the majority and crushed the rights of the minority. They have failed in their constitutional role to protect us. And this was spelled out explicitly in Justice Moreno's withering dissent.

So, they have set a dangerous precedent that ANYONE'S rights are subject to modification by majority vote-- ANYONE. That means left-handed people, redheads, Mormons, the disabled, and any other definable group can have their rights legitimately eliminated by the mob.

BUT: Prop8 supporters did not win what they think they did. Because the court did say clearly that all this applies to is the term "marriage". The actual rights-and-privileges of marriage are still to be available to gay and lesbian folk, just not the name--that is an explicit statement that "whatever it is called" is a marriage in ALL but name. If the H8ers wanted to eliminate all the benefits of marriage from gays, then Prop8 would have been a revision, and unqualified. To qualify as an amendment, the effect of Prop8 must be limited to the name "marriage".

Think about it. This means that there must be state forms that include the DP'd folks: "Single or Married/unioned". This means that kids will learn that there are marriages and DPs in school, and yes, teacher may invite them to her wedding (because they didn't take the name wedding, just the name "marriage"). This means that under law, GLBT "whatever you call its" WILL be treated the same as "marriage" .

Prop8 is still wrong, of course, and the court did fail. Separate is not equal, and we must over turn it. But I wonder how long it takes The Forces of H8 to figure out that they didn't really succeed doing what they thought they were doing.

As the expression goes, the arc of history may be long, but it bends towards justice.


Erp said...

I have a feeling the pro prop 8 groups are going to be quite unhappy with this decision.

We know the 18,000 pre-prop same-sex couples can still use the word 'marriage' and that can't be removed because it damages their property interests. The court explicitly states in the last footnote:
"We have no occasion in this case to determine whether same-sex couples
who were lawfully married in another jurisdiction prior to the adoption of
Proposition 8, but whose marriages were not formally recognized in California
prior to that date, are entitled to have their marriages recognized in California at
this time."

I would also think, if property rights in the name "marriage" are important, that the court might be wary of removing the name from out-of-state couples married post-prop 8 who take up residence or are visiting California (the current NY situation). I haven't read the whole decision and I am not a lawyer but I don't think the court closed off this hole.

What it does show is that the California constitution is crazy.

Göran Koch-Swahne said...

Welcome in blog land IT!

IT said...

Yes, ERp. I don't think it was optimal for us but I think it is a good thing that it is not optimal for them either. And the thing is, we will win next time.

Welcome, Göran.