“We cannot let judges overrule the decisions of a democratic majority!”
This is the all to common response, often given in the tone of righteous indignation, to various courts deeming bans on gay marriage unconstitutional. With the Supreme Court bringing about marriage equality in 11 additional states last week, we have heard a new slew of charges that the Court is ignoring the democratic mandate of the people.
According to Tony Perkins, the president of the Family Research Council, when the supreme court makes such a move, it is “robbing the people of their vote and their voice.”
However, this argument is not valid, and it is time to debunk this all to common reasoning.
As I often do, I will use an analogy. Suppose the people of Mississippi (or any state, I am not trying to say anything bad about Mississippi) vote in a law that requires all Jews to pay some sort of Jewish Tax, above and beyond the taxes people already pay. Let us also suppose that this law passed with 95% of the vote.
Now, upon reaching the courts (which such a law would assuredly do), should the courts decide that, because the vast majority of people in Mississippi want such a tax, the law should stand?
I hope it is obvious that the answer is no. Such a law is in violation of the 1st (freedom of religion), 5th (due process), and 14th (equal protection under the law) amendments. These amendments, as well as the rest of the Bill of Rights, were written to ensure that minority groups would be protected from a majority who wishes to oppress them. This is a democracy, but we do not want it to become tyranny of the majority.
One major function of the courts is to ensure that laws are in compliance with the Constitution. If a law violates the rights given to us by the Bill of Rights, then it is void.
The question when it comes to gay marriage, then, is whether or not it violates the Constitution. While it may or may not be correct, a reasonable person could easily argue that a ban on gay marriage is at least a violation of the 5th and 14th amendments, and possibly a violation of the 1st as well.
Again, is this interpretation correct? I don’t know, and it is not my job to know. The job of interpreting these amendments is constitutionally left to the courts. So, the court is absolutely within their rights to interpret these amendments for us. In fact, it is more than their right, it is their duty.
If such laws conflict with the Constitution, the courts are required to declare these laws void. The courts have said that bans on gay marriage do conflict with the constitution, so they are only doing the job they have been assigned when they void such laws.
Now, there is the possibility democratic recourse. If enough people feel strongly enough, then there is always the possibility of a Constitutional amendment banning gay marriage, which the courts would have to uphold. However, barring such an amendment, the court not only should, but has to void any law against marriage equality.
Let us hope that such an amendment is never enshrined in our Constitution, for it would only serve as another terrible blemish on American history. Whatever the case, until such an amendment is passed, the argument that the courts, by overturning the laws of various states, is overruling our democracy, is simply absurd.