The battle over California’s Proposition 8, the ballot measure that in 2008 allowed voters to enshrine a ban on same-sex marriage in their state Constitution, continues as the trial in the case of Perry v. Schwarzenegger begins today in San Francisco.
Unlike previous lawsuits over Prop 8 that were based on the state Constitution, this one kicks the fight up to the federal level, saying that Prop 8’s ban on same-sex marriage violates U.S. constitutional rights of equal protection and due process.
This article in the Los Angeles Times points out how very different this trial is going to be, compared to past court cases dealing with same-sex marriage. There will be “weeks of testimony on wide-ranging issues,” for example.
But one thing the article doesn’t discuss is the idea of letting people vote on the civil rights of a specific segment of the community. Even as this trial gets underway, opponents are already working to force governmental entities in the U.S. where gay marriage is legal to put the question to a vote of the citizens. It’s a democracy, they say. The voters should get to decide.
Here’s the problem with that, though. The United States is not a pure democracy. It was never intended to be. The U.S. is a republic. There is a big difference. BIG difference.
Here’s one explanation from LexRex.com: ” These two forms of government, Democracy and Republic, are not only dissimilar but antithetical, reflecting the sharp contrast between (a) The Majority Unlimited, in a Democracy, lacking any legal safeguard f the rights of The Individual and The Minority, and (b) The Majority Limited, in a Republic, under a written Constitution safeguarding the rights of The Individual and The Minority.”
In other words, in a Democracy, the majority rules, always. But in a Republic, the courts have a duty to protect the rights of the minority against majority rule.
In the case of same-sex marriage, the courts have done their duty, time after time, by ruling in favor of legalizing same-sex marriage. But last year the California Supreme Court neglected its duty by allowing an unconstitutional vote by the majority to run roughshod over the rights of the minority.
Let’s hope in Perry v. Schwarzenegger, the federal courts — all the way up to the U.S. Supreme Court — do their duty and uphold the laws of our republic and protect the rights of the minority against the mob-mentality votes of the majority.
2 Comments
Thank you Tammye for explaining the issue this way. I can remember as far back as grade school being explained the importance of the “Seperation of Powers.” The entire structure of the Constitution is to ensure a majority rule society with respect to minority rights. If Segregation and Womens Suffrage was left up to a majority vote they would have failed miserably!
There are lots of things we do not vote on.
We don’t vote on defense. Whether we go to war in Iraq, Vietnam or Korea were not things we put out to voters. Polls show a majority of voters would vote to remove all troops from Afghanistan today. But that’s not the decision of voters.
We don’t vote on the budget. Whether or not we should increase defense spending, health care spending, unemployment benefits are not things put out to voters.
These things are left to the executive and legislative branches with disputes decided by the judicial branch.
And we shouldn’t vote on civil rights. Congress and legislatures should make laws. The excutive should issue executive orders and carry out laws. The judiciary should make sure everyone is being treated equally and fairly.