The Limits of the Vote in a Democracy

As a strong supporter of same sex marriage, I am naturally disappointed in the passage of Proposition 8. I hope it is overturned by the State Supreme Court and then wends its way slowly enough to the Supreme Court that President Obama may have tilted the court back to the center. Some of the opponents of same sex marriage are calling me a bad sport and implying that I must accept the voice of the people. I disagree.

Yes, I believe in democracy and the democratic process. I believe that the will of the people should be heard. But (and you knew there would be a "but") democracy has limits. In this nation, we do not believe that "the majority rules." It governs with consideration of the rights of the minority. This is one of the great parts of our tradition. We don't shoot the losers or oppress the minority. We are aware of the great danger of the "tyranny of the majority."

There are other limits to majority rule. We can't vote to make a short person tall or outlaw gravity. One state legislature once voted, and got signed into law, a definition of Pi (π) that resolved it and didn't go on forever. Not useful votes.

Slavery would never have ended if it had been put to a vote. The Civil Rights movement would not have succeeded if the popular will had ruled. Lunch counters would still be segregated and schools would still be separate and unequal. In many states it is more than likely that inter-racial marriage would still be illegal.

The voice of the people and the popular will are indeed important, and courts should take them into consideration. But we have courts to explore the deeper issues of constitutionality. Same sex marriage will ultimately be decided on the basis of "equal protection" clause of our Constitution. We cannot amend our State Constitution in a manner that contravenes our Federal Constitution.