If you read the HP regularly, you know that in 2008 we ran our first post on gay marriage and the tyranny of the majority. That’s when California legalized gay marriage, and when we heard someone on the radio complain about the role of the California State Supreme Court in making that happen. We explain in the post how the judiciary was specifically created to overturn majority laws/votes that oppress minorities, and therefore court rulings overturning laws against gay marriage are not, as is so often claimed, unconstitutional. Here’s the bulk of the post:
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.
We 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.
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.
Over and over we reposted this article as new states approved or disallowed gay marriage. When on June 25, 2014, the Supreme Court ruled in Obergefell et al. v. Hodges that gay marriage is constitutional—or, more pointedly, that denying it is unconstitutional—we happily reposted for the last time on that subject.
Being historians, however, we knew that the backlash would not be long in coming. The clamor for “religious rights” that has grown up suspiciously in synch with the campaign for equal marriage began to claim that upholding gay Americans’ rights was oppressing Christian Americans’ rights. This is based on a fundamental and perhaps willful misunderstanding of the First Amendment, which we post about here. The First Amendment protects freedom of worship, not belief: here’s the gist from our post:
Worship is generally defined as attending a religious service, but it can be extended to prayer, pilgrimage, wearing one’s hair a certain way, and dressing and eating a certain way.
What worship is not defined as is belief. This is the crucial misunderstanding so many Americans have. Worship is an outward manifestation of belief. But it is not belief itself. And that’s why the First Amendment says nothing about religious belief. Absolutely nothing at all. This is what makes separation of church and state possible: religious belief is not allowed to determine what services the state provides. This means people who have certain religious beliefs can’t be refused state services, and it means that people who have certain religious beliefs can’t refuse to provide state services to people their beliefs condemn.
That’s why all these “religious freedom” bills being passed are bogus. They enshrine beliefs as rights (this is nowhere in the Constitution) and then say the First Amendment protects those beliefs by allowing people to refuse to serve others because their religion says to. Beliefs are amorphous. They are not concrete activities like worship. Anyone can have any belief they want, and their right to express those beliefs is protected. But if that expression comes in the form of refusing state or federal government services, then they cross a line by saying the state or federal government must conform to their beliefs.
This is what’s happening when county clerks refuse to issue marriage licenses to gay couples. The clerks are saying their right to do so is protected, but it is not. If something is legal in this country, the government must provide it—end of story. If people feel they cannot do that, then they should resign their position (quit their job). You cannot refuse to uphold U.S. law on the basis of your religious beliefs. The First Amendment specifically says this by saying Congress shall establish no religion.
So when Kim Davis and her ilk say their religious rights are being trampled, they are wrong. There’s a right to freedom of worship in the U.S., but not to protection of religious belief.
Yet Davis and her fleet of lawyers and her opportunistic supporters are making the same complaint against the courts that were made throughout the marriage equality campaign: Republican presidential candidate Mike Huckabee said in an NPR report that “People are tired of the tyranny of judicial action that takes people’s freedoms away, takes their basic fundamental constitutional rights and puts them in jeopardy.”
Ah, the scourge of “judicial tyranny”. It ruins everything for people who want to oppress others. It seems we will have to keep running our post on the judiciary and its role in stopping tyranny of the majority for as long as people misrepresent and contort the Constitution to serve their goal of restricting liberties, establishing a state religion, and claiming that offering liberty and justice to all is contrary to their Christian beliefs.
The Historic Present 