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.

4 thoughts on “Gay marriage, thanks to our courts

  1. Is your argument that Republicans represent the will of the people (majority tyranny) and Democrats the elitists (judiciary)? If so, how can that argument hold in the face of President Obama’s overwhelming popularity? Can you clarify?


    1. Hello. My argument has nothing to do with political parties, but with the role of the judiciary. Judges are appointed by Republicans and Democrats alike. The beauty of the judiciary as conceived in the U.S. Constitution is that the political beliefs of judges are put to one side in order to accurately interpret the Constitution. There are many Democrats who don’t like the idea of marriage for gay people, and many Republicans who do. Judges don’t take any of that into consideration, but try to promote democracy according to our law.


    1. I’m sure the Court members themselves have strong feelings for and against the cases that they hear. That’s why there are 9 of them instead of just one! so that prejudices can come out in discussion and be labeled as such, and attention focused not on prejudice but the Constitution.
      It’s completely true that the law can be perverted to support slavery or segregation, but those cases are such clear perversions, relying on property law rather than human rights, that it was clear even at the time that justice was being avoided, not served.


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