Tuesday, May 13, 2014

Gay Marriage and the Tyranny of the Majority: Why Judge Piazza was Right

I'm not usually a very emotional guy, but last night I might have gotten something in my eye for a second when a friend of mine from college--who bravely came out as gay while in college in a conservative part of Arkansas, in a more conservative time--posted a picture of himself and his longtime partner, and their new marriage certificate. They looked really, really, really happy. I'm sure they never expected to be able to get married this soon in Arkansas. The reason they could is that Judge Chris Piazza ruled that two anti-gay marriage laws in Arkansas--Act 144 of 1997 and Amendment 83--were unconstitutional. He didn't issue any sort of stay on this ruling, so couples started getting married the very next day in Eureka Springs. My friend got married in Little Rock on Monday.

Needless to say, Judge Piazza's decision has been controversial. Seventy-five percent of voters voted for Amendment 83, a ballot initiative outlawing gay marriage and providing that same sex couples shouldn't have legal status even "substantially similar" to marriage. I was actually in Arkansas in 2004, and was recruited to count votes on the night of that election. I remember counting vote after vote for the amendment, and very few against it. Most people in Arkansas simply did not want gay couples to have the same kind of rights and recognition straight couples do. The majority of them still don't. According to polls, between 50 and 63 percent of Arkansans still actively oppose gay marriage.

So, people are outraged that Judge Piazza is going against the wishes of the majority of Arkansans. Some people, including former governor Mike Huckabee, have even called for his impeachment. Piazza was well aware of the gravity and potential controversy of his ruling, saying, "The issues presented in the case at bar are of epic constitutional dimensions-the charge is to reconcile the ancient view of marriage as between one man and one woman, held by most citizens of this and many other states, against a small, politically unpopular group of same-sex couples who seek to be afforded that same right to marry." He also noted, "The court is not unmindful of the criticism that judges should not be super legislators. However, the issue at hand is the fundamental right to marry being denied to an unpopular minority. Our judiciary has failed such groups in the past."

Indeed they have. Dred Scott, anyone? Plessy v. Ferguson? At the lower court level, in 1959 a Virginia judge sentenced Mildred and Richard Loving to one year in prison for violating Virginia's Racial Integrity Act of 1924. Mildred was black and Richard was white. In his ruling, the judge said, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

It was not until 1967 that the US Supreme Court overruled the earlier judgment in Loving v. Virginia, and ruled that laws against interracial marriage were unconstitutional and illegal. And here's the thing: at the time of the Supreme Court's ruling, about 73% of Americans disapproved of interracial marriage--an even higher percentage than the the number of Arkansans that disapprove of gay marriage now.

So here's my question: if you think Judge Piazza shouldn't be able to override majority opinion in Arkansas and declare gay marriage legal, do you also think the Supreme Court shouldn't have been able to override majority opinion and declare interracial marriage legal in 1967?

Admittedly, the two issues aren't identical. Same-sex marriage is not the same as interracial marriage. But they are similar. In both cases, we have people appealing to tradition, religion, and notions of "purity" (purity of race in the first case, and marriage in the second) to say they're justified in telling people who they can and can't marry.)* I believe that in both cases, they are discriminating against people for something they have no control over. I had no more control over my sexual orientation than the color of my skin, and I don't see why it should be any different for gay people. People disagree, obviously, but I find that most of them have never actually asked a gay person whether they had a choice. I've asked many of them, and most of them say it wasn't a choice. Why would they chose the kind of heartache and discrimination they've had to face?

As for the constitutional issues at hand, they seem pretty much identical to me: does the Constitution protect minority rights against majority rule, and can judges go against majority rule to protect minority rights? The answers are "yes" and "yes" at least in some cases. In the particular case of gay marriage, even the members of the Supreme Court disagree. But it's clear that part of the purpose of the Bill of Rights, and later amendments like the 13th, 14th, and 19th, is to protect people's rights, despite what the majority want. Groups of people can tyranize minorities just as much as individual tyrants can.

As for exactly how majority rule is balanced against minority rights in constitutional law, I can't claim to truly understand that. I've been reading about things like the Equal Protection Clause, substantive due process, and suspect classes, and I don't quite have my head around them yet. But I do know there are times when it's perfectly legitimate for judges to overrule the will of the majority. And you agree with me, unless you think the Supreme Court should not have overruled popular laws against interracial marriage until the late 1980's, which is when the majority of Americans stopped disapproving of it (or until the majority of people in each state stopped disapproving of it, and I don't even want to know when that happened in some states). So, the question is not whether a judge can overrule the majority, but whether he can in this case. 

I think he can and should have. It was the right thing to do. People were being discriminated against and denied equal rights (mostly on the basis of one interpretation of one religion, which brings up 1st Amendment issues as well equality and civil rights issues.) For most people, marriage is an essential part of the pursuit of happiness--a right that is guaranteed by both the Arkansas and United States Constitutions. My friends who were married last night were just pursuing their own happiness, and they look for all the world to have found it. I would be concerned if Judge Piazza's decision narrowed the scope of liberty. But it's not--it expands it. If the majority wants to limit people's liberty, he had every right to tell them they don't get to. The whole point of having a democracy is to protect people's rights, not to take them away.

* No, I don't think everyone against gay marriage for religious reasons is also a racist. Though some of them are. I know that, because I know them.

Judge Piazza's ruling

Gallup Polls on Marriage

Source for polls on gay marriage in Arkansas