LGBT Rights (5): Same-Sex Marriage and the Rights of a Democratic Majority

The (in)famous Prop 8, banning same-sex marriage in California, was approved by a democratic majority. This raises the interesting question whether democracy means something more than majority rule. Does democracy mean that a majority can decide whatever it wants? I don’t think so. That would not be a democracy but a tyranny of the majority. Democracy is much more than simple majority rule. (By the way, dictatorships can also have majority approval, but that doesn’t make them democracies).

The decisions of a majority have to take place within a framework of rules. These rules have two functions.

  • First, they facilitate the decision making (e.g. rules on free speech, freedom of assembly and association etc.), and therefore they cannot, logically, be violated without undermining the whole system.
  • Secondly, these rules limit the kind of decisions that can be taken by the majority. For instance, majorities cannot decide to violate the human rights of a minority. Why? Because these latter rules are basically the same as the former ones. The rules necessary for the successful operation of majority rule are the same, or at least profoundly connected to, the rules granting protection to the minorities. This is called the interdependence of human rights.

If a democratic majority decides to enact laws or policies that violate the human rights of minorities (or individuals, or even majorities), then courts have to step in and enforce the rules of the game. This is not judicial activism by anti-democratic and elitist judges infringing on the democratic rights of the people. It’s judges enforcing democracy, but democracy as something more and better than tyranny of the majority.

We have a clear example of all this in the case of Prop 8 (unfortunately, the courts don’t seem to be playing their constitutional role, yet):

It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution. The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation. Ted Olson (source)

There is some discussion on whether the courts should be playing a role in this. Some gay rights advocates insist that it is better to work on public opinion and hope for a general public approval of same-sex marriage in the decades to come. Of course this is a useful strategy, if perhaps somewhat naive (who knows what would have happened to the civil rights movement had the same strategy been applied then). However, the dismissal of any role for the courts, for example because of the fear of a popular backlash against equal rights enforced by unelected courts, amounts to a profound misunderstanding of democracy.

5 thoughts on “LGBT Rights (5): Same-Sex Marriage and the Rights of a Democratic Majority”

  1. A minority has the same rights as the majority. The majority believes that gay marriges are not right according to God. Trying to put God on the spot will not work. There should be some way for you guys to get the same rights that straights have without marrying in the religious sense, or that violates the values and mores of the majority. True marriage is not possible for your even if you want your lifestyle ‘marriage’. You seem to want it all your way and your lifestyle be accepted by all people. Be sensible. This will never happen unless a majority of people become enslaved to PC instead of God’s laws. And you cannot say that God approves of your lifestyle, although He does love you and hopes for your enlightenment. However, the sex urge is very strong for all people, and I don’t think your’ll give up your ways to follow the eternal moral laws. Certainly people of all stripes give in to it. Please don’t have the silly and dirty gay parades. You cannot imagine how that hurts all of you.


  2. Anonymous, though you speak about “God’s law,” I’ll have you know that America operates under the Constitution of the United States. There’s a little thing called the separation of church and state. Not everyone is a Christian, mind you. Why should they be subject to your religious codes? (I’d point out the Bible has many absurd religious dictates that no sensible person would ever follow–not even you, I’m sure. Never mind, though, that the Bible does not even speak on homosexual marriage.)

    When you outlaw gay marriage, however, minorities (homosexuals) do not have “the same rights as the majority.” The question is not whether the church has to recognize their marriage, the question is whether gay couples can have the same legal rights as heterosexual couples. If your church does not want to recognize the gay couple, so be it; it does not have to. However, for the state to not recognize it is a completely different story. Even you yourself do not have to accept it. But you cannot violate their rights, even if you God says you should. To do so would be fundamentally immoral.


    1. I’ll second that. I’m not aware of any gay rights activists claiming religious recognition of their desired marriages (if one doesn’t agree with the rules of a club it would be foolish to strive towards acceptance by that club). They merely want the legal benefits of civil marriage, the same benefits as straight couples. In other words, they want equal treatment by the state, which isn’t an extraordinary demand. If religious groups – not the state – want to treat them unequally, so be it. If that’s part of their religion, it’s also part of their religious freedom.


    2. First, I would say that the issue of whether or not the California voters’ deciding that they do not want same sex marriage in their state is constitutional would never have arisen if respect for the Constitution were not in shambles. It is the prerogative of the people of California, granted by the Constitution to make a decision regarding what they wish to legally sanction as marriage. This is a power left to the States and the people by the Tenth Amendment, which served to reinforce the same provision in the body of the Constitution as originally written. If people living in California do not feel comfortable with this decision of the majority, then they have the option in our federal system to “vote with their feet” and to move with other kindred souls to a state and community that is more sympathetic to their beliefs and desires.

      What is lost in all of the heated dialogue on this and other similar issues is that the federal government (and it was intended to be a federal government and not a national government)is only granted a few enumerated powers, all the rest remaining with the States and the people. It was never intended that the federal government be in the business of controlling who marries whom. This is a fact of history which stands impervious to the ever-increasing expropriation of federal power through distorted interpretation and legal manipulation of clauses such as the General Welfare, Commerce, and Necessary and Proper clauses. Now, it seems the Feds believe that they have the power to do whatever they wish and to control whatever suits them, including the drain in my condominium swimming pool, the intent of the Founding Fathers notwithstanding.

      Furthermore, all of the hoopla about gay rights or women’s rights or Hispanic rights falls flat at the feet of the fact that the Constitution does not guarantee “group rights.” It guarantees “individual rights” and individual freedom. Everyone is protected equally. However, such protection does not extend constitutionally to the personal choices of a gay person anymore than it would extend to the personal choices of a straight person. I have the right to buy whatever I wish, when I go to the supermarket, but I don’t have the right to demand to have mangosteen fruit from Thailand delivered to my supermarket for purchase any time that I want. Nor, would a blonde woman have the right to demand that the federal government intervene to stop all of the derogation of blonde females because of the prevalence of “dumb blonde” or “blonde bimbo” humor. If, however, if a blonde wished to pursue some avenue of recourse, she would have to do so through the state legislature and courts.

      And, incidentally, I don’t think that most people would have a problem with legal unions between members of the same sex. It is the demand that the traditionally accept concept of marriage be altered. I have no religious or doctrinal position on the issue. However, I do not think that the effort to go against the grain of society makes a lot of sense. It only creates an unnecessary “we vs. them,” adversarial situation that does not lend itself to social harmony, respect, and cooperation.

      Perhaps, you may be interested in my blogs that speak to these issues and even beyond from an independent, holistic perspective.



  3. fuck is goddamn stupid anyways. why would u want to have it? gays are always guys cuz only guys fuck without rubber. wuz the big deal muthafuckas


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