Gay Marriage: Liberalism v. Democracy

Last summer, the Field Guide ran a three-part series on the tension between liberalism and democracy, particularly on how it plays out in developing countries, informing US foreign policy. But to see that tension, Americans need look no further than their own founding document.

The Bill of Rights, above all, is a list of what a majority cannot do through ordinary democratic processes. It is a bulwark of liberalism against the threat posed by democracy. The US Constitution, with its limited powers, cumbersome amendment process, and lifetime tenure for federal judges, is a grand scheme to guarantee the blessings of liberalism against the corrosive force of democracy. In American governance, liberty and democracy are not equal partners – liberty comes first.

The struggle between liberalism and democracy is so acute that hardly a Supreme Court session passes without conflict. The 2015 session included one of the most remarkable such cases in US history, Obergefell v. Hodges, through which the Court legalized gay marriage nationwide: a victory for liberalism, at the expense of democracy.

In a characteristically feeble opinion by Anthony Kennedy, five justices in the majority take a stand for liberalism. Marriage has long been regarded by the Court as a “fundamental right.” State restrictions on marriage have been struck down repeatedly over the past 48 years, including bans on inter-racial marriage, and limits on prisoner’s ability to marry. The majority’s decision extended this “fundamental right” to gay unions also, nullifying state governments’ bans on gay marriage.

In dissent, quite predictably, three conservatives pen disingenuous paeans to democracy – one each by Justices Roberts, Allito and Scalia. Scalia loves democracy so much, he once ordered Florida election officials to stop counting ballots, lest they come to the wrong result. The three of them, with Clarence Thomas, are such proponents of democracy, that just two terms ago they gutted the Voting Rights Act – freeing up southern states to go back to excluding minorities from the ballot box. They’ve gleefully squelched a democracy’s efforts to regulate campaign finance, and struck down gun-control legislation in American cities that have among the highest murder rates in the world.

But it’s far too easy to undercut the conservative dissents by invoking those Justices own considerable anti-democratic decisions of the past. They make some compelling points, which dont just merit an answer – they need to be soundly trounced, so that all may see the error of their ways.

While it’s unfortunate that the Court’s Opinion – now the law of the land – wasnt stronger, this bold stroke is worth repeating:

The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities….”

And even more eloquently:

[F]undamental rights may not be submitted to a vote; they depend on the outcome of no elections.

In other words, the specific complaint of the conservatives in dissent – that democratic processes were not respected; that states should be left to settle the gay marriage question as they see fit – has no place within the framework of the US Constitution, which exists significantly to exclude questions of fundamental rights from the democratic process. Majorities have wide latitude to make laws and set policy – but they cannot encroach on our most basic freedoms. And so when democracy and liberalism clash on this front, democracy must yield.

To understand why democracy was made to ride in the backseat behind liberalism, you have to go back to the birthplace of American democracy: the American Revolution.

We’ll meet you there next week.

 

Share the Field Guide: https://liberalfieldguide.org/

Share this post: https://liberalfieldguide.org/2015/07/01/gay-marriage-liberalism-v-democracy

 

 

2 comments

  1. Mary Wynn Ryan

    Carlton, this is simply wonderful. Happy Indie Day weekend! God bless America and peeps like you! Mary

Leave a Reply to Carlton Thurman Cancel reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s