A strike against the tyranny of the majority

In Federalist Paper 51, James Madison, a key framer of the United States Constitution, and later this nation’s fourth president, wrote, “It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure.”

This sentiment led the founding fathers to take precautions against what’s become known as the “tyranny of the majority.” In a government where a majority of citizens can vote to pass laws that apply not just to themselves but to the population as a whole, judicious consideration must be given to distinguish whether these laws are reasonable and fair to a given minority, or whether they are in fact unreasonable and unfairly target that minority.

In his decision released Thursday, federal Judge Vaughn R. Walker ruled that California’s Proposition 8 law banning same-sex marriage, passed by voters 52 percent to 48 percent in 2008, irrationally and unfairly discriminates against gay men and lesbians. Judge Walker, acting with regard to the best intentions of some of our most thoughtful founding fathers, protected homosexuals from the tyranny of the majority. Moreover, he protected homosexuals’ religious freedom.

Back when the U.S. Constitution was being written, the thought behind the need for protection from tyranny of the majority was based on religious intolerance prevalent at the time. Precautions were made to protect religious minorities and enshrined by the separation of church and state found in the first amendment to our Bill of Rights.

Religious intolerance still exists. In this scenario it exists in the form of laws that deny marriage to a class of people based on certain religious/moral beliefs espoused by another group of people. The people whose rights are being denied, we can easily presume, do not share those religious/moral beliefs. So, they are suffering the tyranny of the majority, and the separation of church and state has also been violated. It is the government’s duty to protect against this, as directed in the U.S. Constitution, and that is exactly what Judge Walker has done. He protected the religious freedom guaranteed in the Constitution for all citizens to believe or not believe whatever they wish. He ruled that these laws unjustly respect a certain religious/moral code over others.

Proposition 8, he ruled, “fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.” He continued, “Indeed, evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Opponents of same-sex marriage are now predictably saying that Walker, a Republican who was appointed to the federal court by President George H.W. Bush, is a judicial activist. That’s a laugh. Walker repeatedly encouraged the lawyers arguing in favor of Proposition 8 to make a better case, including during their closing arguments. He encouraged them to present facts. They failed.

These lawyers argued that the Prop 8 law is rational by saying it protects traditional marriage from harm, that marriage exists for “responsible procreation,” and that children are better off when raised by a mother and a father.

The problem is that these lawyers were not able to present one fact to support any of these claims. They could not produce testimony that showed that same-sex marriage affects heterosexual marriage in any way. They could not produce conclusive evidence that heterosexuals make better parents, nor could they point to a precedent of society denying marriage rights to bad parents, let alone society denying marriage rights to persons who don’t produce offspring.

American Family Association president Tim Wildmon released a statement after the ruling decrying Walker’s decision.

“This is a tyrannical, abusive and utterly unconstitutional display of judicial arrogance,” he said.

To my mind, these bigoted laws banning same-sex marriage are a tyrannical, abusive and utterly unconstitutional display of religious and moral arrogance. As a nation, we should be better than that. As a people, we should be more tolerant than that. As patriots, we should be more Constitutionally honest than that.