It looks likely we will lose the battle for marriage in California.
But if we lose, California loses too — because the state will have taken a stand against fairness and toward the tyranny of majority rule.
That the California Supreme Court justices are leaning toward upholding Proposition 8 was clear from the grilling they gave the lawyers last week who were seeking to overturn it.
They all but announced two things: First, they didn’t feel comfortable overriding the people’s vote, which is now state law; and second, they didn’t see anything in the new law that would retroactively annul the 18,000 marriages performed for gay couples last summer.
So. Those 34,000 people who rushed to have their marriages declared official were the lucky ones. They will continue to live as equal citizens. The rest of gay Californians? Not so much.
The hearing was heartbreaking, because you could hear the judges’ minds working. They wanted to overturn the law, but they couldn’t.
This is where justice and fairness fall on opposite sides.
To see this more clearly, take a look at the questioning by Chief Justice Ronald George of Kenneth Starr, who was defending Prop. 8, as blogged by the Los Angeles Times:
“Starr argues that voters have an inalienable right to amend the state constitution as they see fit through simple majority vote, including ‘things that tug at the equality principle.’ But George leans in on the question and asks whether, if Proposition 8 had specifically said that homosexuals had no right to form a family relationship or raise children, that still could be done by amendment?
“Starr replies yes.
“George pursues it further, asking if California voters could remove the right to free speech?
“Starr says yes.”
Giving a majority the ability to deny a minority crucial civil rights may be a “correct” reading of the law — that is, it may be “justice” — but it is exactly opposite our understanding of fairness and equality and violates the spirit of what it means to be an American.
The Founding Fathers could have made elections hinge on a popular vote instead of the complex system of electors that we have in place — but they didn’t, because they believed that direct rule by the people would result in the “tyranny of the majority” — that is, would encourage the majority to start acting like despots.
James Madison, arguing for a representative democracy, as opposed to one in which the public voted on every issue, said, “A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party.”
If California’s court rules for Prop. 8, then all of California — not just the gay and lesbian population — should shudder. Because it would be clear, then, that Californians, through popular vote, can take away any right from any group. They could take away women’s right to vote. They could take away freedom of the press from Latinos. They could take away freedom of religion from Evangelicals. The majority could deny any right to any group — simply because there are more of them than there are of us.
This is terrifying. I fear that the justices know this — and are using Prop. 8 to teach the state a lesson.
It is a lesson California needs to learn. I just wish it didn’t come at our expense.
Jennifer Vanasco is an award-winning syndicated columnist. E-mail her at [email protected].