Gay marriage, thanks to our courts

Decisions in Iowa and Vermont this week legalizing marriage for gay Americans spawned the usual outraged claims that the judiciary has gone too far. “We’re not governed by the courts,” sputtered one angry man on the radio.

This basic misunderstanding of the U.S. government leads me to repost this article, written last year when California’s courts ruled on marriage for gay people. It applies to Vermont, Iowa, and any other state whose court decides in favor of allowing gay people to marry:

The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.

A review of the constitutionally described role of the judiciary is in order.

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

I heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.

The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.

So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.

April 7, 1630: the Puritans set sail for America

Yes, today is the 379th anniversary of the Puritans setting sail under John Winthrop for America.

These were not the Pilgrims, who had been a mixed group of about 30% religious separatists and 70% average Anglican English people who just wanted to go to the  New World. The Puritans were all people who fully embraced and believed in their mission to purify the Anglican church and redeem the English kingdom from its imminent doom (God would strike England down for failing to fulfill its commission to serve and worship God properly). Their settlement in North America had huge implications. Europe was embroiled in religious war (Thirty Years’ War, 1618-48). True Christianity seemed imperiled. If it succeeded, but the Protestants in Europe lost the war, the Puritans’ settlement might well be the last fortress of true Christianity in the world. Their colony would have to maintain Christianity in the world and repopulate England and Europe with Protestants.

So it was likely with heavy hearts that these people left England. We know from the diaries of many of the men on the Arbella that they were reluctant to leave their home land. Not only would life in America be difficult, but they felt keenly the charge made by their friends and foes alike that they were abandoning the English church, running away to protect themselves from God’s coming judgment, hiding from their duty to God, the Anglican Church, and their friends and families.

The Puritans responded that they were not abandoning their country and their fellows, but trying to carve out a safe space for English people to go to in America to escape the conflagration in Europe. Everyone who wanted to serve and worship God properly would be welcomed (and this proved true during the Great Migration of 1630-40). They weren’t closing the door; rather, they were opening a big window.

When John Winthrop made his famous “city on a hill” speech, this is what he was thinking of. This quote is often taken to mean that the Puritans thought they were better than everyone else, that their settlement would be perfect, and that everyone should envy and admire them. But what Winthrop and his hearers were really thinking of was their desire to make a new refuge for true Christianity, one that would shine like a beacon to all who wished to join them. It’s almost like the Statue of Liberty–the Puritan colony would beckon to the whole world, inviting all who wished to escape the turmoil and wrong doctrines of England and Europe to come and join them, to find safe haven in New England. Yes, you had to be on board with the Puritan version of religion–freedom of worship was never a consideration–but if you were on board, you were welcomed, no matter your social rank, poverty, lack of education, or even ignorance of true religion.

So today the journey began. Think of the Puritans over the next eight weeks; that’s how long their journey took. Winthrop recorded with relish all the “handsome gales” that thrashed their ships over and over; he could not be disheartened by any setbacks. He and the rest of the Puritans would persevere in their determination to maintain their lighthouse on the eastern shores of America.