Sacramento Bee columnist Margaret Bengs this morning argues that “Voters and legislators, not judges, should decide gay marriage.” The question, of course, is why do voters and legislators rather than judges need to decide gay marriage?
Detractors of the court often forget the power of the voters and legislators is strictly governed by the Constitution, which safeguards the rights of the people. One of the chief powers of the court is to hold in check the will of the majority. The Founders of the US Constitution put in place these checks and balances specifically to prevent a tyranny of the majority, where the majority could vote either directly or through their legislative representatives to deny the rights of the minority.
Ms. Bengs noted that, on Tuesday, the US Supreme Court will hear oral arguments about “whether the Constitution requires states to grant same-sex marriage licenses and whether states must recognize gay marriages legally performed in another state.” She writes, “The court’s decision will have a major impact on the right to self-government.”
Ms. Bengs reverses the chain of what the Court will hear, which is whether the states have the right to deny the same rights to same-sex couples to marry that opposite-sex couples have.
She argues, “Currently, gay marriage is legal in 37 states. Thirty-one states, including California, voted to retain traditional marriage, but a handful of federal judges overturned many of these efforts – silencing the voice of millions. In only eight states has same-sex marriage been enacted by the legislature and in only three by a vote of the people.”
“Proposition 8, California’s traditional marriage measure approved by 7 million voters in 2008, was overturned by a single federal judge in San Francisco,” she writes.
“A key question will be: Who decides? The people through the legitimate democratic processes enshrined in the Constitution – or a handful of unelected federal judges?” she continues, as though the courts are not a legitimate democratic process.
The court in Brown v. the Board of Education faced a far more hostile political landscape than the current one. Civil rights leaders, recognizing that they were blocked both at the state level in the south as well as the federal level with the powerful southern block-legislative means to chip away at segregation, carefully selected and crafted a case that they hoped would compel the court to act.
The question before the court was, “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?” Their answer was, “We believe that it does.”
They wrote, “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”
The courts were clearly ahead of the public. It would be another decade before Congress would pass the 1964 Civil Rights Act, followed by the 1965 Voting Rights Act. But the courts were a legitimate mechanism for social change.
Ms. Bengs, however, tries to shift the issue away from equal treatment under the law, where I think the courts are headed, and toward the issue she still feels she is on safe ground – that of “redefining marriage” and, perhaps more importantly from her perspective, “who decides.”
She writes, “If the high court legalizes gay marriage nationally based on the premise of bias against gay people, it would impugn the motives of millions of Americans and could threaten free speech and religious freedom rights.”
I am unsure that it necessary impugns the motives of millions – after all, one of the key provisions in civil rights law is “disparate impact,” which holds motive as neutral while assessing the effect of policy that may well have been put in place in good faith.
On the other hand, perhaps it should impugn the motives of millions of Americans, as we watched, in 2008, the ballot arguments waged in the Prop. 8 battle appealing to the lowest base levels of society.
The problem that Ms. Bengs faces is just how quickly and easily public opinion has shifted on gay marriage. Were there to be another initiative in California, for instance, the overwhelming majority would vote to affirm the rights of gays to marry – there can be no doubt.
However, she seems resigned to that, noting, “A victory won by a fair fight is accepted.” My problem is the next line, “One that is rigged is resented.” The courts are not a rigged process, they are simply a different process that acknowledges that we are a nation of laws with a constitution and people cannot democratically vote to deprive others of their liberty.
What is called judicial activism merely reflects our emerging definitions of liberty. “If gay marriage is imposed on the nation, it will likely be by a 5-4 margin. As in California, one judge’s opinion could strip away the voice of millions of Americans,” she writes, and yet one must wonder how much heartache she had over Citizens United.
“If people are changing their minds and more favor same-sex marriage, as proponents claim and some polls indicate, why not allow change to be made through the legitimate processes of democracy – rather than try to force it through the courts by mischaracterizing the sincerely held beliefs of fellow citizens?” she asks.
To which I respond, if the practice violates the rights of citizens, why should the court stand for it? To me, it is more important that the Constitution protect the rights of citizens from the tyranny of the majority.
Too often in this nation’s history, whether it was through Plessy v. Ferguson or Korematsu v. United States, the court has sided with public fears and prejudices over the protection of civil and individual rights against the tyranny of the majority. For the court to remain legitimate, it must be seen as the protector of the rights of the minority, even when majority says otherwise.
—David M. Greenwald reporting
“To me it is more important that the constitution protect the rights of citizens from the tyranny of the majority.”
as opposed to tyranny of the minority?
The rights of the majority are not threatened by allowing same-sex marriage
Tell that to business owners being forced out of business because they will not cater to gay weddings.
[moderator] Edited for language.
Do you believe that business owners have the right to not cater to mixed-race couples or miscegination on personal religious grounds?
WDF1: they weren’t refused service. they were refused the message they wanted. flipping the situation around – if a christian goes to a bakery run by gays and asks them to print “I don’t support gay marriage” and the bakery refuses, do the christians sue for discriminatory practices?
true story btw.
actually those situations are not flipped. the first case, the bakery is refusing to provide the service that they normally perform because the two getting married are of the same sex. in the second case, they are refusing to put a political message on a cake. those are not parallel situations in the least.
seems like a foolish business decision to turn down business.
in the second case, putting custom messages on the cake is a service THEIR bakery normally performs. so yes, it is the same thing. hehe.
but in the second case they are merely exercising judgment over the message that is appropriate, not denying the service to a class of customers. for instance, a message of “I’m going to boink the bride tonight” would be rightly rejected by any bakery as inappropriate.
it’s the same basic issue of the right to refuse service in a restaurant. they can’t refuse service to anyone for any reason. but if the customer is inappropriately dressed or acting boisterous then they have the right. but the civil rights act precludes then from excluding on the basis of race, gender, religion, etc.
in your example, they would simply be exercising their discretion against the boisterous or inappropriately dress customer, not against the class of individuals which serve the first example.
so now let’s give you a true reverse case – gay bakery owner refuses to sell cake to christian wedding couple – legal or illegal in our book?
The courts will appropriately sort out cases where there is an actual conflict between rights of individuals. That’s what courts do.
Meanwhile, with a dozen or so cases of gays suing businesses that withhold service, balanced against a couple of millennia of overt discrimination against homosexuals — I think the scales are still tipped pretty heavily toward the proposition that individuals claiming various religious objections are the ones who preponderantly merit the ‘intolerant and hostile’ label that Frankly has applied.
“but in the second case they are merely exercising judgment over the message that is appropriate, not denying the service to a class of customers. for instance, a message of “I’m going to boink the bride tonight” would be rightly rejected by any bakery as inappropriate.”
no, they just cant have the message they want on the cake. their is no denial of service, at all. they did not refuse service to them for being gay. they refused to put a homosexual message on the cake because they did not feel the message was “appropriate.” if they ordered a standard cake like everyone else they would have got a standard cake like everyone else. hehe.
interesting, you basically conceded my argument. the wedding cake has the names on it (usually something perfunctory like congratulations john and derrick). that is protected. what is not protected is the message on the cake, that is up to the discretion of the bakery.
don: there is a more interesting question – i was hoping ladynewkbahm would go there but she/he didn’t. will the court see this as an equal access issue – and if they do – will they for the first time recognize gays are one of the protected classes under the civil rights act. because if they do that, this decision becomes a gay brown v. board issue, granted on a like 5-4 vote, but still a brown v. board issue that will bleed into all other issues involves gay rights and equal access.
that is protected. what is not protected is the message on the cake, that is up to the discretion of the bakery.
and the bakery in question does not want to put a gay message on their cake.
i don’t know what a “gay message” is. if it is “i am pro-gay marriage” then i agree with you, they should not have to. if it is “congratulations john and ken” then i disagree and believe that they are specifically discriminating against gays.
There is a fundemental difference between who a person is and what they do. There is no question when race is involved… it is what a person is. However, gay can be a choice. Big, big, big difference.
If we are going to give choice the same protection as being, we are on a very, very slippery slope.
So, basically, you are saying being gay is a behavior, not an identity. I’m pretty sure, then, that’s true of religion as well. About equally true, at any rate. So those bakers can just choose not to be what they say they are. Or choose not to act on it. Or do you think religious beliefs are inborn?
It mystifies me why anyone would open a business in the public square, offering their services and wares to anyone who walks in, but then suddenly say “oh, but not for you, because of who you are.” If you wish to discriminate, you need to do it privately. There are ways to do that: only offer wedding cakes to members of your congregation. Or form a private buyers’ club. But don’t hang out a shingle and then discriminate.
I don’t get the sense that these are deep theological thinkers. In most cases, I’d bet there is a minister who introduced and supported the idea that their baking a wedding cake constitutes an ‘endorsement’ of the wedding. Conservatives here on the Vanguard never seem to state whether they support the acts of discrimination, or support the underlying ‘theology’. They just want to support the right of bakers to discriminate. Is that true? Or do you actually agree with these poor business owners who want to withhold their goods and services from their fellow citizens?
Frankly: There is no question when race is involved… it is what a person is. However, gay can be a choice.
Oh, I guess I see where you’re coming from. So if it is a choice to be gay, then I guess it must also be a choice to be heterosexual, too?
Then can you describe what went into your choice to be heterosexual?
So then, what is the “B” in LGBT?
I would have chosen polygamy except for my devotion to my religion.
Frankly: So then, what is the “B” in LGBT?
So you are then saying that everyone is bisexual and then chooses to be gay or straight or bi?
That’s not how it worked for me. I knew I was heterosexual from the earliest moment I had any awareness of the issue. For the gay friends that I have, they knew they were gay at the earliest moment they had any awareness.
Nice deflection. LGBT. Not my crusade, but there it is. Would you know if you were born bisexual? What about born a polygamist? Or born to have sexual attraction to animals or children? What about people with fetishes.. where they born that way? Do we have to provide service to all of them no matter what our own beliefs are? Yes, I know I know… consenting adults is the benchmark. Well consenting hetrosexual sex and different-gender marriage used to be the benchmark, and there are some poeple not yet comfortable with the change. Why is there this obsession to harm people not comfortable with the change? Nothing stopping gays from getting their cakes from other places. Nothing stopping them from opening an exclusive gay wedding service business. Nobody is preventing them from doing what they want to do. It is them attacking the cake maker attempting to take away his freedoms.
I think fewer gay men are gay by choice than are lesbian women lesbian by choice. I read somewhere that there are a higher percentage of bisexual women than men… and there are more women that switch sides.
Certainly not all gays are so by choice, but some are. And supposedly we are supposed to also accept that bisexual people deserve the same protection.
The choice aspect blows away the race argument.
By the way… I probably would not do business with a baker/cake maker that refused to serve gays. But that would be my choice.
Let’s try this:
So remind me why these bakers refuse to bake cakes for gay people? Oh yeah: mixing the ingredients and putting it in the oven and then decorating it constitutes an endorsement of gayness. Or something.
Do you agree with that, by the way?
By the way, that is true: http://religions.pewforum.org/portraits
I wonder if they were born that way, or if it was a choice.
Frankly: The choice aspect blows away the race argument.
I’m still interested to hear how you chose to be heterosexual. I had no idea.
Don you seem to be equating LGBT to a religion or multiple religions.
So if you frequently opined about the gobal oppression of women and owned a company that made wedding dresses and an ultra orthodox Muslim couple came in demanding you make them a wedding burqa, would would demand it and shut down the wedding dress maker’s business if refused?
Actually, I’m telling you that sexuality is innate, and religion is a choice. I’m not equating them.
We have equal protection under the law, and we have freedom of and from religion. In some instances those things we value will come in conflict. In those instances, the courts will decide how to balance the competing interests.
Your question seems to have suffered from keyboard garble, but if I made wedding dresses in a shop open to the public I would expect to make them for anyone who walked in and wanted to buy one. I don’t have to like my customers or agree with them about stuff. My making the dress would not constitute an endorsement of their beliefs. If I wanted to be exclusive about who I made wedding dresses for, I would have to find some way to provide the service privately.
Do you believe that baking a cake constitutes an endorsement of anything?
Frankly: Your comment about how you suggest that homosexuality is just a choice is very revealing. I presume that you’d think you could snap your fingers and choose to become heterosexual or homosexual. You could also snap your fingers and choose to stop loving your wife and kids. After all it’s just a choice.
“The courts are not a rigged process, they are simply a different process that acknowledges that we are a nation of laws with a constitution and people cannot democratically vote to deprive others of their liberty.”
Well written. I agree.
it’s weird that the right has taken such an approach on the courts which protect both sides from the excesses of electoral governance.
Gays and gay rights crusaders are the new intolerant and hostile demographic that needs to be controlled. They are nasty, mean and relentlessness in their exploitation of power derived from disingenuous soft emotive arguments in support.
This nation of laws has been turned on its head to support a tyranny of the minority.
he says without irony
Frankly: If you were invited to a same-sex wedding ceremony by a close friend or family member, would you attend without volunteering these kinds of comments to other wedding guests?
Absolutely. I would celebrate the happiness and love and committment of two same-sex people that love each other. I have before.
But I would also support people that own a business and don’t want to provide services for gay weddings because of their strongly heald religious beliefs.
My tolerance of human difference is absolute; how about yours?
Frankly
“Well consenting hetrosexual sex and different-gender marriage used to be the benchmark, and there are some poeple not yet comfortable with the change. Why is there this obsession to harm people not comfortable with the change?”
I find it interesting that you are defending the tender emotions of those who “are not comfortable with change” and are being supposedly harmed, when you have staunchly defended only the “material harm”standard in the past. It seems that you seem to see plenty of “harm” when it is Christian sensibilities ( not material well being) that are being threatened, but claim lack of actual harm when it is the LGBT community that is incurring a great deal of actual harm under current “comfortable” laws enacted by the heterosexual majority.
Frankly, I wouldn’t say gays are, I would say the gay-activists are. and many of them are not gay but theyre just as obnoxious. I have two bisexual friends that don’t go along with this PC crap.
I hear you LKB. Those friendly and tolerant gays are having thier reputation damaged by those hostile gays and gay activists.
http://www.inquisitr.com/2047230/kentucky-court-rules-in-favor-of-a-christian-printer-who-refused-to-print-t-shirts-for-gay-pride-rally/
speak of the devil – finally some good news.
not a marriage issue. also neither unexpected nor very meaningful as it was a kentucky state court on an issue that eventually will go federal and probably supreme. that said, as i said before, i think you are on safer ground here than on marriage because it becomes an advocacy issue rather than an access one.
Unless I missed something, the word “marriage” doesn’t appear in the document [Constitution], nor its amendments. Therefore, there are no constitutional rights to “marriage”. What business does government then have in “marriage”? Perhaps we should get the government out of that entirely. If people of faith (or not) want to vow themselves to one another, and call it “marriage”, fine. I did, and would. Technically, “marriage” is ‘unconstitutional’ as it is not referred to.
Imagine, if the government got out of the “marriage” business, we could simplify the tax code, allow for polygamy, same sex, different sex, etc., unions, bound by a “contract” if that is what society needs. If you truly believe in ‘constitutional civil rights’, push for the end of government’s involvement in “marriage”. Period.
you are correct that the constitution doesn’t mention “marriage” however, the civil righs act of 1964 ended discrimination based on a host of categories and the 14th amendment which guarantees equal protection under the law.
Fine… don’t disagree… just take “marriage” out of civil law. No discrimination there.
Unless, I missed your point… are you proposing that the government dictate religious marriage rights/rites as well? I could easily see where that would be on a future “agenda”.
As usual, DP, you ignored my point to state the obvious.
hpierce
“If you truly believe in ‘constitutional civil rights’, push for the end of government’s involvement in “marriage”.”
I agree with you on this one. Having the government involved, and providing special perks for those who choose to marry is definitely discriminatory against individuals who, for whatever reason, have chosen to remain single. How this is in keeping with the rights of “the individual” rather than the couple is beyond me. It would seem to me that this is, in and of itself a form of “collectivism” that the government has chosen to endorse.