Ohio is the newest state in the union to recognize out of state same-sex marriages.
Judge Timothy Black ruled that refusing to recognize same-sex marriage is a violation of constitutional rights and “unenforceable in all circumstances,” in the latest court victory for gay rights supporters.
“The record before this court … is staggeringly devoid of any legitimate justification for the state’s ongoing arbitrary discrimination on the basis of sexual orientation,” Black wrote.
The state's rationalization:
The state plans to appeal Black’s ruling — arguing that Ohio has a sovereign right to ban gay marriage, which voters did overwhelmingly in 2004.
The problem with that is that creating equal opportunity for all is not a popularity contest. What Attorney General Mike DeWine does not understand is that the Constitution was written in a way so that the rights of the minority are protected from the tyranny of the majority. So while the will of the people is important, it cannot trump the rights granted by the 14th Amendment, unless DeWine wishes to lead a movement to repeal the 14th.
DeWine's logic flies in the face of the writings of Madison.
It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority -- that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.
The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.
The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.
This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased.
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.
In other words, should our society continue along the path advocated by DeWine, it would, in the fulness of time, degenerate into a form of anarchy. Besides enabling the creation of second-class citizens, direct democracy can create long-term budget problems.
The Economist explains:
Direct democracy in this form contributes to dysfunction. California currently has America's worst budget problems, but other states with extensive direct democracy, such as its neighbours Arizona and Oregon (which has had more initiatives than even California), are close behind. In Oregon it will be voters who decide, in January, for or against a tax increase to help plug the latest budget hole.
Those budget holes often result from the cumulative consequences of voter initiatives as much as from economic slowdown. Since the 1970s voters have tended to like initiatives that promise better schools, new hospitals or tougher prison terms, but they are oblivious to the costs involved. At the same time, they loathe taxes and in many states they have insisted, by voter initiative, that two-thirds majorities are needed to raise them.
Robert Stern, the president of the non-partisan Centre for Governmental Studies in Los Angeles (and a drafter of initiatives since the 1970s), believes that direct democracy cannot and should not be ditched wholesale. Despite everything, “most Californians have more confidence in the initiative process than in the legislative process,” he says. That is a result of increasing polarisation between the two big parties, which has led to blocked and unresponsive legislatures and so bred a yearning to circumvent them.
But Mr Stern, like Mr George, believes that the process must be improved and supports the idea of a constitutional convention in California for that purpose. There are far too many initiatives because the signature-collection process is trivially easy for those with money (though daunting for those without it). There must be clearer and more accessible information for voters. And in California the legislature should be allowed at least to amend all initiatives, which it currently cannot. Its citizens should remember that they have a republic, if they can keep it.
The ACLU, talking about an attempt by Governor Chris Christie to "let the voters decide" on gay rights,
says that the determination of rights should be left up to the courts.
But the issue of who should make the decision in New Jersey about same-sex marriage is not merely about strategies and tactics by each side figuring out where it has the best chance to prevail. The reason why same-sex marriage rights may need to be gained in some places—perhaps everywhere—by a vote of the U.S. Supreme Court, and certainly preserved by the U.S. Supreme Court when granted, is that the U.S. Constitution was designed so that constitutional rights would not be put up to votes of the general public. Instead, fundamental rights were granted by the U.S. Constitution, and the individual state constitutions, and at least the U.S. Constitution was designed to be very difficult to amend. And what the various constitutions meant, when there was a dispute, always has been ultimately up to courts, not Congress, not legislatures, and not votes of the general public. Moreover, the best thinking is that judges should be thoroughly vetted and appointed, not elected, although they are still elected in many states.
It is particularly ironic that many Americans complain about so-called “activist judges,” especially when those judges explicitly affirm constitutional rights. The U.S. Supreme Court has been reviewing acts of Congress for constitutionality since Marbury v. Madison in 1803. If that is judicial activism, judges have been “active” for more than 200 years, not only since some mythical starting point during the New Deal or while the Republican Earl Warren was chief justice.
The Founding Fathers didn’t get everything right (note African Americans originally each being counted as 3/5 of a citizen, black men not obtaining the federal right to vote until 1870 [15th Amendment], and no women having a federal right to vote until 1920). But the Founding Fathers understood the problem of the “tyranny of the majority”—the likelihood of most citizens being so uninformed about constitutional law, so uninformed on relevant facts, and/or flat-out irrational that they might vote not only in favor of silly statutes or unfair taxes or appalling political candidates, but that they would support basic constitutional rights being denied their fellow citizens. (Protecting against the tyranny of the majority was the reason behind all of the checks and balances: veto power, staggered election terms, differences between the U.S. House and U.S. Senate, even designing a representative—not direct—democracy in the first place.) Whatever one thinks about a particular judge, or judges generally, they know more about constitutional law than the average voter, or the average politician, and what judges don’t know, they find out before making decisions. They also are sworn to uphold constitutional rights—it’s in their job description—which certainly is not true for the average voter.