Note: This post comes from a comment I made on Facebook in response to the a comment on one of my status updates.
In browsing online for reactions to the Prop 8 decision, I’ve noticed several complaints by folks who voted for Prop 8 about having their vote overturned. They seem to think that they had their rights trampled on.
But, no where in the Constitution does it say that the majority has a right to deny rights to the minority.
We do not have a direct democracy. We have a representative democracy on which our founders put in place several checks and balances in order to ensure that no one component of our democracy became too abusive in its power. We have Congress, the Executive, the Judiciary and the People. Each can influence and check the other. This is not a liberal idea. This is a fundamental part of the Constitution.
Furthermore, Judge Walker is a conservative, Republican judge. His decision is based in a conservative reading of the constitution. It was not a liberal, “activist” decision, as I’m sure many will want to label it.
Our Constitution put into place checks so that no one majority would be able to exert tyranny over another minority. That is was Judge Walker corrected yesterday. The system worked as it should. This is not a case of the government taking too much power and intruding in to people’s lives. In fact, it is the opposite.
From the NYTimes[1]:
The judge easily dismissed the idea that discrimination is permissible if a majority of voters approve it; the referendum’s outcome was “irrelevant,” he said, quoting a 1943 case, because “fundamental rights may not be submitted to a vote.”
Removing discrimination regarding the State privileges conferred by “marriage” does not, according to any rational argument, threaten those who want to believe that marriage should only exist between a man and a women. You are still free to believe that, to attend a church that abides by that ideal and to teach that to your children. But these are moralistic determinations and, as Judge Walker said in his decision: “Moral disapproval alone, is an improper basis on which to deny rights to gay men and women.”
Moreover, “marriage” is not a fixed idea. It has been changing throughout history and will continue to change as society and people do. Marriage, as we know it now, evolved largely during the advent of agriculture as a way for men to ensure paternity and guarantee the succession of their property through inheritance. Women used to become the property of their husbands after they became married. I doubt “most people” would still want this definition of marriage.
More from the NYTimes:
One of Judge Walker’s strongest points was that traditional notions of marriage can no longer be used to justify discrimination, just as gender roles in opposite-sex marriage have changed dramatically over the decades. All marriages are now unions of equals, he wrote, and there is no reason to restrict that equality to straight couples. The exclusion of same-sex couples from marriage “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” he wrote. “That time has passed.”
Someone commented to me on Facebook that: “Most people are more concerned about the maintaining the definition of marriage then preventing people from having equal rights.”
Now, I’m not sure how that person knows what motivated “most people” to vote for Prop 8. Let’s say it is true that they were most concerned with preserving the definition of marriage, as they see it. I get that change is scary. But fear of change does not justify denying rights to others. Enacting Prop 8 and other discriminatory laws does real damage to real people and it’s not okay. Voting simply based on one’s own fears and interests without regard for the effect on others, in my opinion, is not responsible citizenship.
I don’t hate those who vote for laws like Prop 8, but I am disappointed in those decisions. They were either made out of fear, or an outright moralistic determination that there is something wrong with LGBT couples. As I said above, neither is a valid reason for denying rights to others.
[1] http://www.nytimes.com/2010/08/05/opinion/05thu1.html?_r=1