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Are Liberties Subject to Majority Vote?

From yesterday's SF Chron:

Are liberties subject to majority vote?
Tobias Barrington Wolff

What are the structural protections of government for? What are we trying to protect when we safeguard the prerogatives of legislatures, executives and courts? Those questions took center stage in the arguments before the California Supreme Court over the constitutionality of Proposition 8 – the provision that deprived gay and lesbian couples of the right to marry last November. The answer is clear: One of the central purposes of the structural plan of government is to protect the rights of individual citizens. That answer must now guide the court in resolving this dispute.


But there was one telling moment that I suspect was not the result of deliberate candor. In explaining why the structural provisions of the Constitution are so important and deserve special treatment, Starr let slip a reference to what the structural protections of government are actually for: They are designed to safeguard liberty. Therese Stewart, the lawyer for the city of San Francisco, went on to frame the issue succinctly: If we protect the structures of government but leave all liberties to simple majority vote, then we are safeguarding the moat while allowing the castle to burn down.


The California Supreme Court must now decide whether it meant what it said in the marriage cases last spring. When the court ruled that LGBT people constitute a protected minority, it put anti-gay provisions on the same constitutional footing as provisions that single out people of color, women, or religious minorities; and when it ruled that relegating same-sex couples to domestic partnership instead of civil marriage violated their fundamental right of dignity, the court recognized that the humanity and the equality of LGBT people are inextricably linked. Those rulings were courageous, and the court deserved much praise for them.

Now, the court must have the courage of its convictions. There is no principled way to accept Starr's position and uphold Proposition 8 without paving the way for any protected minority to have its fundamental rights taken away whenever a bare majority wishes to do so. It is hard to imagine a more profound alteration of the constitutional principle of equality – a principle about which the court itself has said, “There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”


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