There is a lot of good analysis on the Supreme Court’s decisions last Wednesday to throw out California’s Proposition 8 case (Perry v. Hollingsworth) and to overthrow key parts of the federal Defense of Marriage Act (DOMA) (United States v. Windsor). Same-sex marriage supporters are elated at the incredible progress the gay rights movement has made in recent years. The more optimistic marriage defenders point out that the decisions don’t really change much: they simply refer the argument over marriage to the states, to let the democratic process, and civil society, do its work. And who could argue with this sort of federalism?
But of course, both of these positions miss an important fact. In both Supreme Court decisions a law passed by a democratic majority through the democratic process was overturned by judicial fiat. What we are seeing here is yet another case of reliance on nondemocratic power structures in order to overcome or bypass a democratic process that stubbornly refuses to go its way, or at least to go its way quickly enough.
These efforts are frustrating because they are entirely unnecessary. Take Prop 8 for instance. Californians voted by a percentage of 52-48 to enshrine the conjugal view of marriage in the state constitution. But most people believe that this vote, taken in 2008, does not reflect the current attitude of California voters. Californians could pass a new constitutional amendment establishing same-sex marriage.
Instead, state officials decided to overthrow Prop 8 on the basis of violation of gay rights. They did not demonstrate that gay rights, or the definition of marriage as an emotional/sexual bond that they presuppose, appeared anywhere in the U.S. Constitution. Rather, particular officials, with widespread public support, judged that such rights ought to exist, and that their own judgment on the matter trumped the democratic process in California.
Similarly, after a bipartisan majority in Congress overwhelmingly passed DOMA in 1996 (Senate 85-14; House 342-67), and Democratic President Bill Clinton signed it into law, the Supreme Court has seen fit to throw out the element of the law that defines marriage—only for federal purposes—as between a man and a woman.
The reason, as articulated by Justice Anthony Kennedy, is that to define marriage as a one man-one woman union is discriminatory and hateful. Kennedy does not clearly articulate the constitutional basis for this conclusion. The only basis for determining that our marriage definition discriminates unjustly is a definition of marriage as merely an emotional or sexual bond between two persons. But again, there is nothing in America’s Constitution to justify this assumption.
As Justice Alito pointed out in his dissent, there are two views of marriage clashing here, neither of which is enshrined in the Constitution.
One view considers marriage to be the comprehensive union of a man and a woman geared toward sharing a life together that includes procreating and raising children. According to this view, the state has an interest in marriage because the state wants to see children raised as healthy and productive citizens.
The other view considers marriage to be a sexual or emotional bond between two persons. According to proponents of this view, the state’s rejection of conjugal marriage is justified because it is necessary to protect the dignity of those who feel attacked by it.
It is hard to see how this argument stands. Many defenders of marriage would happily grant to same-sex couples the same economic and legal rights as married couples through civil unions. Given the natural differences between heterosexual and homosexual sexuality, this distinction hardly seems arbitrary, and it is not obvious why it need be unjustly discriminatory.
But my purpose here is not to question the merits of same-sex marriage. My worry, rather, is that the methods used by same-sex marriage supporters to achieve their aims seriously undermine both the democratic process and Americans’ confidence in it. This bodes ill for civic trust and democracy itself.
Again, the question forces itself: why not leave the future of marriage to the democratic process?
While support for same-sex marriage may be “liberal” in the sense that it defies long-accepted moral norms, support for the rejection of democratic processes is hardly “liberal” in its opposition to the process of democracy.
Supporters of the Court’s decisions recognize that this is a problem. In Slate, prominent liberal William Saletan insists that the Court’s actions do represent the “will of the people.” Saletan admits that when DOMA and Prop 8 were passed, they did represent the public will, but, he argues, times have changed. Minds have changed. Now, as polls tell us, the public increasingly wants same-sex marriage. Thus, he concludes, “The court, at long last, has done what the people want. Unelected judges are no longer the nosy outsiders defying the country’s values. You [marriage defenders] are.”
Saletan is arguing that the Court is justified in overturning legislation passed through the democratic process because that democratic process no longer represents the “will of the people” as represented by various polls. But if this is the case, why have the democratic process at all? Why not simply be ruled by enlightened judges and other officials who can interpret the “will of the people” based on their own gut instinct accompanied by opinion polls?
What Saletan defends borrows from the logic of the worst dictatorships of the twentieth century, which expressly justified their autocratic power on the basis that the leader (or leaders) represented the “will of the people” (even Hitler’s courts were, of course, the people’s courts). And always, of course, in the name of some sort of liberty, equality, or public good.
Genuine liberals have responded time and again that the only way to ensure that the will of the people is actually respected is to give the public an authoritative voice through a public referendum or through elected representatives. Despots claim to speak for the people. Only the people can speak for themselves.
Now we find self-proclaimed liberals justifying the judicial overriding of democracy on the basis of the “will of the people.” Genuine democrats can be forgiven if they are somewhat worried. Marriage defenders should not hold their breath if they are waiting to see whether the Court will someday overturn the democratic processes of those states that have protected marriage. Don’t kid yourself. These sorts of developments do threaten the fragile thing that is democracy. And there is nothing liberal about that.
It is sometimes right for courts or presidents to provide checks to the democratic process. Basic rights and freedoms should be protected against majority rule. But such rights and freedoms are so basic that they are enshrined in our state constitutions and bills of rights, or recognized by the authority of longstanding tradition (e.g., the Ninth Amendment). Surely they cannot presuppose a highly disputed and novel (hardly a decade old!) redefinition of one of humanity’s oldest institutions.
Saletan argues that by 2020 same-sex marriage will have public support in 44 states. If that is the case, does the cause really justify the overriding and erosion of democracy that the Supreme Court’s recent decisions represent?
In the end, either the activists don’t believe their own predictions, or they are simply too impatient to allow democracy to do its work. In either case, such actions are incredibly shortsighted and foolhardy. For there is no right more precious, no freedom more basic to this country, than that of democratic self-government. If we lose that, neither marriage nor same-sex marriage has much to gain.