Democracy and same-sex marriage

Great Debates
1

I know this has been done before, but I’m interested in your thoughts. Is constitutional democracy is incompatible with the rights of minorities?

Free registration required

[QUOTE=Jeff Jacoby, Globe Columnist]
MATT FOREMAN, the executive director of the National Gay and Lesbian Task Force, was celebrating Arizona’s defeat of a proposed constitutional amendment defining marriage as the union of a man and a woman.

Constitutional democracy is incompatible with the rights of minorities? That would have come as news to champions of American liberty from John Adams to Martin Luther King Jr. They would have been even more taken aback, to use no stronger term, by the suggestion that there is a “basic right” to homosexual marriage, something American law has never permitted.

(snip)

But advocates of same-sex marriage appear to regard democracy as a snare to be avoided. Hence their preference for securing gay marriage by judicial command, as in Massachusetts and New Jersey. And hence their aversion to letting voters decide whether the definition of marriage should be changed.

“History is replete with examples of advances in civil rights that would not have been tolerated had they been put to a popular vote,” wrote Kathleen O’Connor, president of the Women’s Bar Association, about the petition by 170,000 Massachusetts voters for a constitutional amendment defining marriage. “If our Bill of Rights were today submitted for voter approval, it would be defeated as too radical.”

(snip)

To begin with, it wasn’t through “blunt” ballot measures that Southern buses and water fountains were segregated. It took the “delicacy of legislation” to write something so abominable into law.

Nor was it by means of a judicial bolt from the blue that segregation was finally crushed. It was through the passage of the Civil Rights Act of 1964 – a legislative milestone that would never have been reached if not for the fact that a majority of white Americans supported it.

(snip)

The republican form of government to which all Americans are entitled makes them the source of the constitution(s) under which they live. The only valid civil rights are those that have the consent of the governed. Their legitimacy comes from the democratic process, not from judicial fiat or political correctness.

“I know no safe depository of the ultimate powers of the society but the people themselves,” Thomas Jefferson said, “and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion.” Same-sex marriage will never be a civil right until the people in their discretion make it one.
[/QUOTE]

2

The problem is one of degrees. Do The People have the right to arbitrarily detain and execute a random mass of people based on their race or religion, or are there rights which all men are born with? If you concede that there are some rights which the majority should not have the right to eliminate, you are only arguing over specifics.

Now, from a practical standpoint, yes, usually when %75 or more of the people in a democracy agree on something it will come to pass in one way or another even if technically illegal or unconstitutional.

3

To protect minority rights you need two things:
(1) Some sort of protection written into the laws that is relatively easy to interpret. That can be in a written constitution, in an ordinary piece of legislation, or (in a common law system) in the decisions the superor courts, as writen up in the reports and textbooks.
(2) General support among judges, legislators and ordinary citizens for those rights.

It does not need to be in a constitution: the UK and Australia support minority rights without those rights being entrenched in a constitution. But there does need to be general support: notoriously, the Soviet Union had a written constitution guaranteeing minority rights, but becauise they weren’t supported by the government or by the CPSU, those rights just got ignored.

4

I believe this problem is what has been referred to as the tyranny of the majority.

5

That line of thinking would come as a surprise to many conservatives and many liberals (and all Libertarians) who believe “rights” are based in natural law, or something. Something above and preceding the state. It’s often been argued in this forum that the Bill of Rights does not create or grant any rights, it only recognizes them.

6

[QUOTE=Thudlow Boink]
I believe this problem is what has been referred to as the tyranny of the majority.
[/QUOTE]

Sure beats the alternative-- tyranny of the minority.

I agree wholeheartedly with the quote in the OP. Don’t be fooled by judicial successes in securing minority rights. They might have preceded legislative actions by a few years, but the SCOTUS doesn’t generally act until the country is pretty much ready. *Brown *would not have been possible 20 years earlier, and it wouldn’t have been necessary 10 years later (when the Civil Rights Act of 1964 was passed).

The people are capable of securing minority rights, and the judiciary can’t act too much out of sync lest the backlash* make things worse. If the SCOTUS were to mandate SSM at this point, I have little doubt that the country would pass an anti-SSM constitutional amendment. We’re not quite ready, as a country, for SSM. Maybe in 10 or 20 years, but not now.

*I know it’s an overused term, but here it is appropriate.

7

[QUOTE=BrainGlutton]
That line of thinking would come as a surprise to many conservatives and many liberals (and all Libertarians) who believe “rights” are based in natural law, or something. Something above and preceding the state. It’s often been argued in this forum that the Bill of Rights does not create or grant any rights, it only recognizes them.
[/QUOTE]

But how come those natural rights only became effective when a majority accepted them? And we now think those rights apoply to women and black people: so how come those natural rights didn’t apply to women and black people 200 years ago?

Talking about “Natural rights” is useful rhetoric, and may even be useful for analysing moral issues, but they aren’t effective until granted by a majority.

8

[QUOTE=Giles]
But how come those natural rights only became effective when a majority accepted them? And we now think those rights apoply to women and black people: so how come those natural rights didn’t apply to women and black people 200 years ago?

Talking about “Natural rights” is useful rhetoric, and may even be useful for analysing moral issues, but they aren’t effective until granted by a majority.
[/QUOTE]

Yep. The only alternative is to have a minority decide what rights are recognized. If rights were truly give to us by God, then it might make sense for some priestly class to decide what those rights were, but rights are secured by men, not given by God.

9

[QUOTE=John Mace]
Yep. The only alternative is to have a minority decide what rights are recognized. If rights were truly give to us by God, then it might make sense for some priestly class to decide what those rights were, but rights are secured by men, not given by God.
[/QUOTE]

But Jefferson’s argument was that rights were inherent in nature, notwithstanding if a personal god existed. No priests required, just reason. It’s not clear that the Declaration would have won a referendum.

I agree that rights are secured by men, and that the courts follow the polls. As Mr. Dooley said, with respect to if habeas corpus applied to the Philipines

Translated from the Irish by me. :slight_smile:

10

[QUOTE=Voyager]
But Jefferson’s argument was that rights were inherent in nature, notwithstanding if a personal god existed. No priests required, just reason. It’s not clear that the Declaration would have won a referendum.
[/QUOTE]

So what inherent rights did Mr Jefferson think applied to Sally Hemings? Did he believe that she had the right to “life, liberty and the pursuit of happiness”? Did he believe that she had the right to vote?

11

[QUOTE=John Mace]
Sure beats the alternative-- tyranny of the minority.
[/quote]
Except that’s not the alternative, nor do I see how either form of tyranny is superior. Part of the point of Constitutional rights is to avoid both.

[QUOTE=John Mace]
The people are capable of securing minority rights,
[/quote]
The “people” are the primary threat to minority rights.

[QUOTE=Giles]
But how come those natural rights only became effective when a majority accepted them? And we now think those rights apoply to women and black people: so how come those natural rights didn’t apply to women and black people 200 years ago?
[/QUOTE]
That argument against the concept of “natural rights” doesn’t work; the obvious answer is “For the same reason my natural ability to breathe oxygen doesn’t help me when someone is strangling me.” Assuming that natural tights exist, that doesn’t mean they can’t be taken away; in fact, they can be taken away by definition, or they wouldn’t be rights at all. They’d be the laws of physics.

12

[QUOTE=Voyager]
But Jefferson’s argument was that rights were inherent in nature, notwithstanding if a personal god existed. No priests required, just reason.
[/quote]

OK, then all we need is some biologists and logicians instead of priests. Wanna go that route? :slight_smile:

Well, it was passed by the duly elected officials of the time, which is pretty much the same as our Legislature(s) today. Granted, it was a narrow electorate, but then the rights secured were narrow, too (not granted to all minorities, witheld completely from some, and thinly granted to women).

13

[QUOTE=Der Trihs]
That argument against the concept of “natural rights” doesn’t work; the obvious answer is “For the same reason my natural ability to breathe oxygen doesn’t help me when someone is strangling me.” Assuming that natural tights exist, that doesn’t mean they can’t be taken away; in fact, they can be taken away by definition, or they wouldn’t be rights at all. They’d be the laws of physics.
[/QUOTE]

Yes, but if the concept of natural rights is so obvious, how can it be that people have different opinions on what they are. I believe that women have the natural right to vote, and slaves have the natural right to freedom. Mr Jefferson, who was so eloquent on the subject of natural rights 200 odd years ago, did not believe that. If there’s no agreement on what those rights are, how useful a concept is it to say thatv they arec well defined as the natural ability to breathe?

14

[QUOTE=Giles]
So what inherent rights did Mr Jefferson think applied to Sally Hemings? Did he believe that she had the right to “life, liberty and the pursuit of happiness”? Did he believe that she had the right to vote?
[/QUOTE]

Mr. Jefferson never had sex with that woman, Miss Hemmings. :stuck_out_tongue: Anyhow, you did notice where it said all men are created equal, right?

15

[QUOTE=John Mace]
OK, then all we need is some biologists and logicians instead of priests. Wanna go that route? :slight_smile:

[/quote]

Well, I don’t see how biologists would help, though my wife is one and she’d do a better job than most of these clowns. As for logicians, I don’t see how it could hurt - so long as they had to negotiate with other logicians.

How did members get appointed? Tories seemed dreadfully underrepresented there, IIRC. I also think their opinions changed during the session - there was relatively little desire for independance at the beginning of it, and the war had gone on for over a year before the Declaration was written.

16

[QUOTE=Giles]
Yes, but if the concept of natural rights is so obvious, how can it be that people have different opinions on what they are. I believe that women have the natural right to vote, and slaves have the natural right to freedom. Mr Jefferson, who was so eloquent on the subject of natural rights 200 odd years ago, did not believe that.
[/quote]
Because people are willing to deny both reality and their own supposed morality/philosophy in their own perceived self interest. Blacks are neither inferior nor natural slaves, women are not inferior, no God ordained their position in life, but none of that stopped them from being oppressed. Men claimed that all men were equal and had rights, then enslaved other men because they were hypocrites, not because the enslaved had no “natural rights”.

[QUOTE=Giles]
If there’s no agreement on what those rights are, how useful a concept is it to say thatv they arec well defined as the natural ability to breathe?
[/QUOTE]
It counters the “if it’s inherent, how can it be taken away argument”.

As for me, I never said that I, personally believed in natural rights, just that your argument was flawed. What I do believe is that the concept of human rights are an axiom, part of the basis of any ethical system I would consider good. I also believe that those who do not believe in human rights are by nature enemies of those who do; good versus evil, as it were. Therefore, I don’t really care if they are natural or not.

17

[QUOTE=Der Trihs]
Except that’s not the alternative, nor do I see how either form of tyranny is superior. Part of the point of Constitutional rights is to avoid both.

[/QUOTE]

And the “tyranny of the minority” always seems to be something about how horrid the minority is for existing and wishing for equal rights. SSM is tyranny of the minority, as is the gay march in Jerusalem as was blacks drinking from the same water fountains as whites.

A real tyranny of the minority - like the Sunnis under Saddam, is something else entirely.

18

[QUOTE=Voyager]
Well, I don’t see how biologists would help, though my wife is one and she’d do a better job than most of these clowns. As for logicians, I don’t see how it could hurt - so long as they had to negotiate with other logicians.
[/quote]

Natural rights derive from human nature. If we were intelligent ants, we’d have a different set of rights.

My bad. I read “Constitution” where you wrote “Declaration”. But we should be talking about the Constitution, because the Declaration didn’t secure any rights, it just asserted that certain “inalienable” rights existed.

19

[QUOTE=John Mace]
Natural rights derive from human nature. …
[/QUOTE]

Where are you getting this definition of natural rights?

20

[QUOTE=ThePCapeman]
Where are you getting this definition of natural rights?
[/QUOTE]

It’s not a definition. But both Hobbes and Locke talked about natural rights being based on human nature. I’m sure others did as well. Even if someone advocates deriving natural righst using reason by itself (as Kant did), you have to start with the subject of those rights to determine what is “right” for them.