The Barack Obama administration in the U.S. issued a statement recently through Attorney General Eric Holder saying that it will no longer defend the constitutionality of DOMA (the Defense of Marriage Act)—a federal law banning recognition of same-sex marriage. It is a huge step forward for gay marriage proponents in the U.S. But, while Obama’s administration wields executive influence over the legality of the ban, right-wingers are in a shit-roar over the consequences of its repeal: most people oppose gay marriage, they claim, therefore gay marriage should be banned. That’s democracy, they say.
I say that that isn’t democracy. I say that recognition of gay marriage should not be banned, because the majority have no concern in the affairs of the minority. If Jeff wants to have the same pension plan as his partner Chris, it is not the business of their neighbours. They are not throwing their gay pension plan over the picket fence and onto their neighbour’s lawn. Caring about what your neighbours do on their own property, when they are mutually consenting adults, is just plain nosey. As much as you want it to, it doesn’t concern you. IT’S NONE OF YOUR BUSINESS.
Let us define democracy:
2. a state having such a form of government: The United States and Canada are democracies.
3. a state of society characterized by formal equality of rights and privileges.
4. political or social equality; democratic spirit.
5. the common people of a community as distinguished from any privileged class; the common people with respect to their political power.
Here is my chief argument: A democracy is a form of government in which the majority rule on issues which affect them, not on issues which do not affect them. Whether or not Joan and Linda receive federal marriage benefits such as the right to file a joint federal income tax return does not affect the majority. Therefore, it is undemocratic to allow the majority to rule on whether Joan and Linda should have the right to marry. It’s simply nobody else’s business.
“Ah, but no matter which branch of government makes the decision, it is always going to be a matter of majority rule”, you will argue (and from here it goes down a slippery slope and keeps getting weaker and weaker). “For example, if a panel of judges rule on the legalization of same-sex marriage, it is still the majority opinion that rules.”
But there is a crucial difference between a majority of judges, and a majority of the people. Judges are obliged to adjudicate the law, not rule on the basis of personal preference. That’s why a person is appointed a judge–that person is deemed proficient in interpreting and implementing the law for the law’s own sake. Therefore, when a majority of judges rule on a matter, it is not just because they want their voice to be heard–rather, it is because of how they interpret the law. That is why the archetype of Justice is blindfolded. She is impartial. So, no, a majority on a panel of judges is nothing like the majority voting in a public referendum.
“But the law itself had to be ratified by a majority”, you will argue. “The U.S. Constitution was ratified when nine out of thirteen states–a majority–approved it.”
But, again, this was not your run-of-the-mill polling booth populated by old grannies cringing at the thought of two men rubbing up against each other (and God knows what else). These states were run by lawmakers who ruminated over the meaning and significance of a document which would affect the daily lives of people for centuries to come. That’s what judges and lawmakers do. They were not basing their decisions on flippant, arbitrary, impulsive prejudices; they were basing them on well thought-out arguments about human rights–which, in fact, were inspired by French Englightenment philosophy, not the Bible. In other words, they were not your average granny at the voting booth with the IQ of a rock. Besides, the original plan of the Constitution’s framers was to seek out unanimity among the states–in order to avoid the whole majority vesus minority scenario. Benjamin Franklin was one proponent of unanimity.
“But lawmakers are elected by the majority as agents of the majority in order to enforce the will of the majority. Lawmakers must reflect the will of their constituents.”
But this is fallacious repetition, because I have already explained the proper place of majority rule above. As already stated above, a democracy is a form of government in which the majority rule on issues which affect them, and not on issues which do not affect them. And, in light of what has been acknowledged, when a majority must rule on minority issues, they must do so under pressure of reason, impartiality, and foresight, because personal preference is not applicable to all. Thus, a representative is not obliged to reflect the views of the majority of her constituency when the issue at hand does not affect the majority of her constituency; in fact, she is obliged to reflect the views of the minority when minority issues are at hand. After all, whether or not Joan and Mary file a joint income tax return does not involve the majority. Why, then, should the majority be allowed to vote on it? Why, then, should a representative reflect the views of the majority, and not the minority?
What do America’s founders think about this issue? Thomas Jefferson, like many men in his day, may have been a slave-owning misogynist, but he had at least one highly perceptive thing to say about the proper function of majority rule:
All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.
In other words, according to Jefferson, when the majority rule, they must do so on the basis of reason, and not irrational prejudices. He also concedes that majority rule must take into account equality between the majority and the minority, and we have already established far above that this is one sense of the definition of democracy. I disagree with Jefferson only on the point that the majority should always rule. I do not think that the majority should always rule. I think that the majority should rule when the issue at hand involves the majority, and not when it involves only the minority. But when a majority must rule at some level, it must be based on objective reasoning. In the case of gay marriage, the ruling majority should consist of serious decision-makers (legislators) who are not compelled to reflect the interests of their majority constituents on an issue which does not concern their majority constituents.
Oh, by the way, Jefferson sort of supported the more left-wing senses of the definition of democracy provided at the beginning of this blog entry. He invoked equality. Yes, originally it was meant to boost up the plebeian (underprivileged majority) to meet the level of the patrician (overprigileged minority), but, in an ironic reversal, in this case it is the underprivileged minority trying to meet the level of the overprivileged majority.
In summary, gay marriage should not be put up to a public vote because gay marriage is of no concern to the greater public. Whether or not Joan and Linda get to file a joint tax return is of no concern to their neighbours. Who makes the final decision, you ask? Informed, well-educated, impartial judges and lawmakers who demonstrate an appreciation for reason, justice, and compassion, separating their obligations to their majority constituents from those to their minority constituents. Because the majority do not have a say in the lives of the minority. What do you think?