Tag: gay marriage

Trump and Lincoln’s Cooper Union speech

Welcome to part four of our series on the serious and striking comparisons between the U.S. in the months (and years) before the 1860 presidential campaign and the 2016 presidential campaign. Here we take a look at Abraham Lincoln’s speech at the Cooper Institute in New York City (now Cooper Union) on February 28, 1860 and compare one part of it with the rhetoric coming from Trump supporters in 2016.

Again, our point of comparison between the 1860 and the 2016 presidential campaigns is sectionalism. In 1860, slavery drove sectional division north and south. In 2016, as we say in our first post,

Today’s sectionalism, then, represents a divide between liberals and conservatives that seems as strong as the divide between North and South ever did. Liberals and conservatives are found in every geographic region of the country, which means there is no region that serves as a safe haven for either…

Sub out “slavery” for “gun control”, “immigration”, or “war on Christianity”and you find that the language used in the 1860 campaign is strangely similar to the language used so far in the 2016 campaign.

In the Cooper Union address, Lincoln represented the new Republican Party, in only its second presidential election season. He was in 1860 still walking the fine line of saying that while the Republican Party was dedicated to stopping the spread of slavery into the west, it would not try to abolish slavery in the south. In most of his speeches on the campaign trail, Lincoln tried to do two things at once: force southerners to accept a Republican victory, if it came, by emphasizing that winning the popular vote would mean that most Americans wanted to stop the spread of slavery and therefore southerners could not claim that the election had been hijacked by a radical minority; and convince southerners that this antislavery majority did not mean that the south would have to get on board with the rest of the nation and abolish slavery.

This is the context for the statement we’re about to quote from the Cooper Union address, in which Lincoln addresses proslaveryites and debunks their claim that they have a Constitutional right to enslave other people and, therefore, an implied right to secede from the Union if slavery is abolished or even limited to the south. Here is the candidate:

…But you will break up the Union, rather than submit to a denial of your Constitutional rights.

That has a somewhat reckless sound: but it would be palliated, if not fully justified, were we proposing, by the mere force of numbers, to deprive you of some right plainly written down in the Constitution. But we are proposing no such thing.

When you make these declarations, you have a specific and well-understood allusion to an assumed Constitutional right of yours to take slaves into the Federal Territories, and to hold them there as property. But no such right is specifically written in the Constitution. That instrument is literally silent about any such right. We, on the contrary, deny that such  right has any existence in the Constitution, even by implication.

Your purpose, then, plainly stated, is, that you will destroy the Government, unless you be allowed to construe the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events.

Sub out “slaves” and the right to enslave for the right of anyone and everyone to buy and openly carry guns anywhere in public, even schools, or the right of self-professed Christians to deny public services to people who they feel offend Christianity, or the right of anti-choice legislatures to deny women access to health care from providers that also perform abortions, and you have a Democratic speech right out of 2016.

Many people today who self-identify as conservative in our new sectionalism of conservative v. liberal consistently claim a constitutional right to deprive others of their personal liberties. Yet the Constitution, as Lincoln points out, is “literally silent about any such right”. The Second Amendment does not protect private gun ownership for private use; it protects the right of American citizens to own guns so they can fight in local militias sanctioned and controlled by local governments. The Constitution does not mention Christianity in any way, and the Founders officially denied any Christian basis for the United States. Abortion or the rights of fetuses are not in the Constitution.

Too often an American’s right to freedom of speech, which actually is in the Constitution, is construed to protect “rights” that are not in the Constitution. Ever since the Supreme Court decided that actions could be identified as speech, this has happened. If it’s constitutional to protest outside an abortion clinic, clinics must be unconstitutional. If religious freedom is protected in the Constitution, then all of my religious beliefs must also be constitutionally protected (nope—see Gay Marriage, Religious Freedom, and the First Amendment for a rundown of the difference between religious worship and religious belief).

But conservatives who believe that all their beliefs are enshrined in the Constitution are often deaf to these arguments. As Lincoln put it, they will destroy the Government, unless they be allowed to construe the Constitution as they please, on all points in dispute between them and liberals. They will rule or ruin in all events. The eagerness of Trump’s supporters to destroy the federal government that they see as denying them their constitutional rights is a harvest sown by neoconservative Republicans for over thirty years now. This anti-government, Constitution-bending activist section may likely dispute the outcome of the presidential election if Clinton wins. And so we find ourselves, like Lincoln, facing a possible contested election over chimerical Constitutional rights. Secession seems slightly less likely today than in 1860… but it seemed unlikely to most observers in 1860.

Next time: on with the 1860 campaigns

Kim Davis, the Supreme Court, and tyranny of the majority

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.

Gay marriage, religious freedom, and the First Amendment

Recent events force us to stop in the middle of our series on what’s in the Bill of Rights to circle back to our post on the First Amendment-–the celebrity amendment. The Supreme Court’s ruling in favor of marriage equality has led to a firestorm of protest from people who say our First Amendment right to religious freedom is being tramped. They are wrong.

Let’s revisit the text of the amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The “free exercise” of religion means freedom to worship. That’s it. Our First Amendment religious right is to worship as we see fit. Since Congress will not “establish” a religion—i.e., make it the official state religion—everyone is free to worship as they wish.

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.

On NPR this morning, Tammy Fitzgerald, Executive Director of the North Carolina Values Coalition, said this:

Religious freedom is what our country was founded upon. That is why the Pilgrims came to America, because they were being persecuted in Europe for their religious beliefs.

Of course she is wrong on both counts. The Pilgrims, as faithful and patient HR readers know, came to America because they wanted the freedom to practice their own religion. This is not the same as freedom of religion. They did not allow any other religion than their own in Plimoth. The Puritans, which is who Ms. Fitzgerald probably was thinking of, did not allow freedom of religion either. Those two groups wanted to establish states where their religion was the sole state religion, and they did not tolerate any other religions. The same was the case in Virginia (strictly Anglican).

The Declaration of Independence does not mention religion one time. The Constitution did not mention it until the First Amendment was added. So it’s hard to say that our country was “founded” on religious freedom.

And, as we know, when the Founders wrote the First Amendment, they protected freedom of worship only, which, as we’ve made clear, is not the same thing as saying “your religious views are allowed to overturn federal law and you can do whatever you want if it’s part of your religion.”

Insisting that states pass laws protecting the right to do whatever people want so long as they say it’s part of their religion is a way to establish a state religion: it makes public access to government services dependent on the religious beliefs of government employees. That is NOT in the First Amendment, and Americans who know this must dedicate themselves to teaching those who don’t.

Gay marriage in Alaska v. tyranny of the majority

Round 10 for this post, which we run each time the issue of gay marriage is resolved by a state court in its favor. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as Alaska’s ban on gay marriage is revoked:

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.

Gay Marriage defeats tyranny of the majority–again

We’re happy to announce appearance #9 of this post, which we run each time the issue of gay marriage is resolved by a state court in its favor. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as a district court overturns Utah’s ban on gay marriage:

 

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.

Gay marriage in New Jersey–continuing to overturn tyranny of the majority

We’re happy to announce appearance #8 of this post, which we run each time the issue of gay marriage is resolved by a state court in its favor. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as New Jersey Governor Christie drops his attempt to stop gay marriage and the first couples are wed in that state:

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.

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.

The best of times, the worst of times: Supreme Court rulings on the Voting Rights Act and gay marriage

It’s the time of year when Supreme Court rulings come one after another; this year we have a very mixed bag. The principles of liberty and justice for all were violated by yesterday’s ruling striking down Section 4 of the 1965 Voting Rights Act. They were upheld by today’s ruling striking down the 1996 Defense of Marriage Act.

We will post at more length on both rulings shortly, as we all begin to grapple once again with the ups and downs of participating in the always ongoing, never finished fight against human nature and us v. them that is the price and privilege of being citizens of the United States.

Gay marriage and the tyranny of the majority—no more?

Yes, it’s the seventh appearance of this post, which we run each time the issue of gay marriage comes up in high court in the U.S. The first time was back on May 21, 2008, when California’s Supreme Court decided that banning gay marriage was unconstitutional. The original point was that whenever a court overturns a law, there are always those who squawk—incorrectly—that it has overstepped its authority. The judiciary in the U.S. is meant to overturn laws, even laws with great popular support, that are unconstitutional because they restrict peoples’ liberty for no good reason.

Overturning bans on gay marriage started out as an example of thwarting this “tyranny of the majority”, as de Tocqueville called it, but now that the majority of Americans support or do not care to ban gay marriage, this type of legislation is becoming a rebuke to tyranny of the minority. That’s heartening.

Here is the original post, resurfacing now as we circle back to California. The U.S. Supreme Court is hearing a challenge to that original California ruling that made banning gay marriage illegal in the state:

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.

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.

No gay marriage in North Carolina

Yes, I will continue to re-post this article each time the question of gay marriage comes up in the courts or the polls!

Yesterday a majority of North Carolinians voted to amend the state constitution to read that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.”  This vote is an example of tyranny, and will likely spawn the same arguments decisions made by voters or state legislatures or state courts in California, Iowa, Vermont, and Massachusetts have, so here is the basic Truth v. Myth post on the role of the judiciary in the United States and the danger of tyranny of the majority in a democracy, which was originally posted in 2009 after California’s Supreme Court decision on gay marriage, once again:

State Supreme Court decisions deeming the bans on gay marriage unconstitutional  continue to spawn the usual outraged claims that the judiciary has gone too far. “We’re not governed by the courts,” is the common complaint, as sputtered by one angry man on the radio.

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 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, black and white, who wanted to abolish it. The natural 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 an injustice which is fundamentally 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.

Gay marriage and American Experiment approved in Maryland

When Maryland Governor Martin O’Malley signed legislation to ratify same-sex marriage on March 1, 2012, he made a powerful statement:

“For a people committed to the principle of religious freedom, the way forward is always found through greater respect for the equal rights of all.”

This is at once a great validation of the principle of the American experiment, and a proper reading of the First Amendment, which I heard someone on the radio define as being about freedom of religion. He defined it that way to force the Amendment to support the proposed Blunt amendment, which the Senate narrowly voted down on March 2. The logic is that if religion is protected first, then it’s the most important thing to protect, and therefore needs special protection, or even support. Somehow the First Amendment, which prohibits our federal government from establishing a state religion, or stopping anyone from practicing their religion freely, is really meant to champion certain religious beliefs, and legally protect them.In the cae of the Blunt proposal, a narrow Christian belief about conception would be championed above all other religious beliefs on the same topic, and protected by the federal government.

But the First Amendment protects freedom of speech, press, religion, and right to petition. Each of these is equally important. And the federal government’s role is to protect everyone’s beliefs by refusing to official sanction any of them.

So freedom of religion is about allowing all religious beliefs to thrive naturally, and this means not imposing any one church’s beliefs on others. And the last thing the federal government should do is outsource which beliefs are acceptable or condoned and which are not to the realm of business, where employers would make those decisions.

America has always been great when it extends rights to more people, not when it takes them away. When we allow more people to vote, to go to school, to work, to run for office, to marry, to immigrate here, to speak out, and to worship as they see fit, we’re doing the right thing, the thing America does best—living the experiment of freedom. The way forward is always to enshrine greater respect for the rights of all.

So thank you, Gov. O’Malley, for reiterating that point.