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.

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* 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

Praying in Public

Norman Rockwell. Do Unto Others (click for credits)

By now people who follow such things have heard the outcome of the Greece v. Galloway case. The town of Greece, New York can continue opening its board meetings with prayers, even though most of those prayers over the years have been explicitly Christian--something many of the citizens of Greece are not. The handful of people who read this blog can guess what my humble little opinion will be--it was a bad decision. This is a religiously diverse country. Millions of Americans are Jews, Muslims, Buddhists, Hindus, or Sikhs, while millions more are non-religious. City board meetings are representative assemblies of citizens, so it seems to me that their official proceedings should be, you know, representative.

There's just no way to have an official prayer that represents all creeds. You could rotate them, I suppose, having citizens of all the faiths in a town open meetings with prayers in their own faith. But that leaves out non-religious people, and it's sure to cause controversy. Imagine what's going to happen if a local Muslim doctor in a small town in West Virginia asks to open a council meeting with a prayer invoking Muhammad as God's prophet. It's not going to go over well. Better, I think, to just leave the prayers outside of government functions. People should be able to pray as often and as loudly as they want--just not as a part of an official government proceeding. By all means, pray all day long if you want to, just don't ask people who don't share your beliefs to stand up and pray with you.

Still, I realize there are bigger issues in the world than this one. Barrel bombs are dropping on children in Syria. Governments are killing people with drones. This is not an issue that will (likely) cause people to lose their lives, their livelihoods, or their freedom. In terms of church/state issues in particular, I can't get as worked up about this as I can about enforced school prayer, creationism in public schools, or religiously-based discrimination against gays (which does dramatically impact people's lives). Also, I know the stereotype a lot of people have about those who object to official prayers--they're seen as whiny liberals who want to impose their weird minority believes on the Christian minority. "Butthurt" is the lovely term I keep hearing. Obviously, I don't agree with that stereotype, but part of me thinks it would be better to save our objections for the bigger church/state issues. Is fighting against official Christian prayers, especially in places where the majority of people will be against you, worth the ill will it generates? Tough question. I know I prefer persuasion, whenever it's an option. Hence this post.

Anyway, even though I'm not religious, but I've stood and bowed my head for many Christian prayers at government functions. Not long ago, Senator David Vitter organized a town hall meeting where I live in Louisiana. At the beginning, he said something like, "First let's all get in the right frame of mind by having a prayer." Then we all bowed our heads, as a member of the local parish council (who seems like a very nice person) said a prayer that ended with, "in Jesus' name we pray." I looked around afterward and wondered how many other non-Christians were in that room. Probably not many, honestly. Out of 250 or so people in south Louisiana--mostly very pro-Vitter--I wouldn't think there were more than a handful of non-Christians. But I also bet I wasn't the only one. I know there are Jewish, Muslim, Hindu, and Buddhist Americans in town, even I didn't recognize them in the meeting. Could it be that they didn't quite feel welcome?

As for me, I can handle going along with a public prayer, though I don't particularly like the assumption that I agree with it. It's not like I think I'm "cheating on" my own religion--I don't have one. Besides, if I had objected to that prayer, in that atmosphere, I might have left on a stretcher. But what about people of other religions? Imagine being a Jew in that meeting (and we do have Jewish citizens here). How would you feel if you were asked to stand and participate in a prayer that ended with "in Jesus name we pray?" You would think, "But we don't pray in Jesus' name. If we did we would be Christians, not Jews." Or if it's hard to imagine being non-Christian, let's say the shoe were on the other foot, and you were a Christian in a predominantly Jewish neighborhood. Would you be OK with standing and participating in a Jewish prayer? How about a Hindu or Muslim prayer?

In Matthew 7:12, Jesus says "Do unto others what you would have them do unto you." Do you want to be asked to pray in a religion besides your own? Is that what you would want others to do unto you? Just before that verse, in Matthew 6:5-6, Jesus says, “And whenever you pray, do not be like the hypocrites; for they love to stand and pray in the synagogues and at the street corners, so that they may be seen by others. Truly I tell you, they have received their reward. But whenever you pray, go into your room and shut the door and pray to your Father who is in secret; and your Father who sees in secret will reward you." What would Jesus have thought of official prayers in a pluralistic nation? I don't know, and I know we church/state advocates love to quote Matthew 6:5-6, whether we're Christians or not. But it's a question worth considering. Besides, he did say it.

As Justice Elena Kagan pointed out, asking people to participate in other people's prayers at goverment meetings puts them in an awkward position. Very often, they've come to ask for something. For example, I live on a street full of children, but people are always driving through here like they're practicing for NASCAR. I truly worry that someone is going to get run over. What if I went to a council meeting and asked that speed bumps be installed? Would it be a good idea to remain seated, head up and eyes open, during the prayer, before I asked for those speed bumps? It's easy to imagine being voted down just because a couple of council members peaked at me during the prayer, and didn't like what they saw. It's even easier to imagine if you were obviously "different"--if I looked Middle Eastern, for example, or spoke with a non-English accent. Of course, most people wouldn't let that affect their vote, but we all know some would. So, people who feel they're violating their own faith by participating in a prayer have a tough choice--go with your conscience and abstain...and risk retaliation? Or sit quietly, feeling like a traitor to your faith? Not an easy choice to make. And not one that any American citizen should be asked to make.

Under the Seas of Arkansas

Modern Crinoid,
Gulf of Mexico (click for photo credit)

Finding a fossil in the wild is one of the most profound encounters you can have with nature. It makes abstract theory real in a way no book or museum ever will. You can read all day about how dinosaurs once roamed the area. You can go to the museum and see the displays about oceans that once covered the dry land under your feet. But it's all secondhand. It doesn't seem real until you get out in the country, away from the books and museums, and dig the bones of an ancient, wild creature out of a cliff face. That's when you feel in your own bones that it's real. It's not just in books written by people with too many letters after their names. It happened right here, way out in the middle of nowhere; back when the whole world was wild.

I grew up reading those books about fossils and ancient seas, and tromping around the cliffs and creeks near my parents' house, which is on a cliff in the Arkansas Ozarks. I had a vague understanding that the sandstone in the cliff was once the coastal sand of a vanished sea. But it never quite seemed real. I never truly connected the landscape around me with what I was reading until I decided to go fossil hunting. I got in my car and headed about 20 miles north, to a valley near Leslie, Arkansas. I pulled over to the side of Highway 65, and walked over to a line of cliffs along the road, at the base of a noble little hill called Chicken Wilson Knob. 

I had passed those cliffs hundreds of times before, on the way to my grandparents' house up the road in Marshall. It's a beautiful spot. In wet weather, springs gush from holes in the cliff face. Sometimes in the winter they freeze into beautiful ice cascades. But this was summer, so I picked my way through the kudzu, keeping an eye out for copperheads, until I found a streak of crumbling shale between two layers of limestone. Sifting through the debris, it was no time at all before I found my first fossil. It looked vaguely like a piece of petrified bamboo, about as big around as a broom handle. It was sticking about six inches out of the rocks, with the other end disappearing into the hard-packed shale deeper in the cliff. I tried to dig it out, but I ended up breaking off the part that protruded. The other end is still in that cliff, for all I know. 

Fossil Crinoids from Indiana / Indiana State Museum

I had found the stalk of a large crinoid; also known as a sea lilly. Sea lillies still exist today. They do look like big, exotic flowers, but they're actually animals that spend most of their lives fixed in place at the bottom of the sea. And I had just dug one out of a cliff in the middle of Arkansas, hundreds of miles from the nearest coast. That's when it really hit me that all that stuff in the books wasn't just dreamed up by eggheads in universities--it really happened, right where I was standing, in the middle of rural Arkansas, by the highway that takes people to Branson. 

That crinoid had lived right where I was standing; at the bottom of a shallow Arkansas sea, roughly 320 million years ago. That's where it died, was buried, and slowly turned to stone. Rather a lot has happened since then. At first, more layers of muck, composed mostly of the carbonate shells of tiny sea creatures, built up and turned to limestone. Eventually, higher land rose to the north and east. As it eroded and washed into the area, it formed rivers, deltas, swamps, and beaches. The mud from the highlands turned to shale and the sand turned to sandstone--some of which forms the caprock cliffs of the southern Ozarks. The southern continent of Gondwana slowly crashed into what would become North America, buckling the old sea floor into the Ouachita Mountains to the south, and raising Ozarks as a plateau. For the next 300 million years, the area would be dry land. The dinosaurs evolved, ruled the land for ages, and then vanished. Birds, mammals, and flowers spread over the landscape. Continental glaciers came and went (though they never got this far south.) The ancestors of Native Americans migrated from east Asia after the last glacial cycle, about 100 lifetimes ago. Europeans came and spread through the hills, founding the town of Leslie. When Highway 65 was built, they dynamited the cliffs along Cove Creek, exposing that sea creature that lived so long ago. And then I came along and broke it.

I've hunted for fossils off and on since then, but I've always been more careful, and try not to disturb things too much. Now I know some of the most important fossils are unrecognizable in the field to anyone but professional fossil hunters. I started thinking I might break or displace some ancient fish that could have transformed our understanding of evolution, if I had just left it alone and let someone find it who knew what they were doing. Yesterday, I realized just how real that possibility was. I had been hearing about a fossil that's changing the way scientists think about shark evolution. Modern sharks, it seems, aren't the living fossils they're often made out to be. They're highly modified from their ancient ancestors, who had a very different jaw structure, as shown by the new fossil that was making the news a couple weeks ago. Reading up on Arkansas geology yesterday, I saw where the fossil had been found: Leslie, Arkansas. 

It was just a few miles up the road from my crinoid, in a slightly older layer of rocks (the Fayetteville Shale, which is currently being "fracked" to extract its natural gas.) What's most striking about photos of the fossil is how ordinary it looks. It's just another rock, at least to the untrained eyed. The paleontologists studying it had to use high intensity x-ray scanning at the European Synchrotron to see the shark skull inside. I could have picked it up, peered at it, and tossed it aside, or worse, taken it home as a curiosity. Similar things have happened many times, I'm sure. I hate to think how many missing sections in the tree of life are sitting in a box in the back of someone's closet. 

Anyway, these days I'm more careful about fossil hunting (or I would be if I didn't live in a swamp with no rocks at all). Usually I just leave them for someone else to find. Maybe they will know what they're doing, and will know if it happens to be an important find. Or maybe someone like my younger self will find it; someone who's read the books and learned the theories, but never seen for themselves that they were true.

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Ancient Fossil Shark Reveals New Insights into Jaw Evolution

Geologic History of Arkansas Through Time and Space

Geologic Map of the Leslie Quadrangle