As someone who doesn’t like government telling people what to do, I am not especially enamored with the 9th Circuit Court ruling that Proposition 8 is unconstitutional. I didn’t like Prop 8, but I think ordinary voters at the state level ought to have a right to make up their minds about these things. I also agree with Eugene Volokh (himself a gay marriage supporter) that the decision was incorrect.
If a federal court can invalidate Prop 8, they can invalidate a proposition legalizing marijuana, or banning SWAT Teams. Or a more conservative court might agree with Rick Santorum that states have no right to legalize gay marriage. Or even contraception. The issue is not what is right or what should be done, but whether the people in a state have the right to do it. California has as much right to prohibit gay marriage as to allow it. This is why I oppose the federal constitutional “marriage amendment” that so many on the right champion.
Strategically and pragmatically, I think it would have been better for supporters of gay marriage to try again at the polls. Time is on their side, and public opinions are changing, but when the courts force their will on the voters, that has a way of creating an ugly backlash.
People can change their mind, but in a democracy they don’t like being told they don’t count.
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4 responses to “Democracy includes the right of the people to be wrong”
Any proposition which violates the law of the land is, and should be, invalid. It does not violate the law, then it cannot be found to be invalid.
Setting aside the right or wrong of this ruling, what Stephen Reinhardt said in summary is the truth:
Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.
It goes to the heart of separate but equal since for all practical purposes the people of California had legalized civil unions but called them domestic partnerships. They were willing to live with that and consider it fair. What a bare majority, driven by religious bigotry, and millions of dollars of outside money funneled through the Mormon Church, could not stand was to allow that one word, marriage, to be used.
Not having read the full opinion, I will offer the observation that the problem is not to define the power of “the people” to pass laws. Instead it is to define the limit of power of “the people” when acting as a group to infringe on the rights of any one individual.
Can “the people” eliminate freedom of speech on a 10 to 1 vote? 1000 to 1? 1000000 to 1? If freedom of speech is an inherent individual right, then it should not be possible to pass any law that eliminates that right. (Reasonable and obvious regulation aside.)
As it is with free speech, so it should be with regards to gays, or drug users, or any other marginalized individuals.
That is the meaning behind the frequently forgotten and thoroughly under used 9th Amendment to the U.S. Constitution.
Once again I ask: It is 1963 and blacks can’t vote in Mississippi. What would libertarians do?