As I see it, American liberty exists in the dynamic tension between two magnetic poles. Before I describe exactly what these "two magnetic poles" are, let me say that I've been looking for a good issue to elaborate on this, and courtesy the chat between John McCain and Ellen Degeneres on gay marriage, I've got it. Here is the exchange on youtube:
"Blacks and women did not have the right to vote. Women just got the right to vote in 1920; blacks didn't have the right to vote until 1870."
Give Ellen credit; she got the dates correct, at least as far as the U.S. Constitution is concerned. The Fifteenth Amendment, prohibiting disenfranchisement based on race, was ratified in 1870 while the Nineteenth Amendment, prohibiting disenfranchisement based on gender, was ratified in 1920. One minor quibble: it's not correct to imply that women and blacks could not vote anywhere before these dates. In the early nineteenth century state restrictions on voting eased a bit, and so before the Civil War African-Americans could cast ballots in five of the six New England states (Connecticut excepted); if they owned property they could also vote in New York (Goldman, Reconstruction & Black Suffrage, 2001, p. 10). As for women, the ladies in Wyoming, Colorado, Utah, and Idaho had full voting privileges even before the end of the nineteenth century (Tsesis, We Shall Overcome, 2008, pp. 153-54).
My more substantial argument with Ellen here is that in standing up for gay marriage, she is embracing the wrong pole. I guess now before it gets anymore complicated I should say what these two poles are.
It's very simple: one pole is the idea that in a democracy, usually the majority's will should carry. This was perhaps best expressed a century ago in Oliver Wendell Holmes's dissent in Lochner v. New York, 198 U.S. 45 (1905). Here's the background story: social reformers in New York state were concerned about the health of bakers working long hours. (This was before the prominence of the eight hour work day.) The legislators of New York eventually listened to their constituents and passed a law that declared:
"No person shall be required, permitted, or suffered to work in a biscuit, bread or cake bakery more than sixty hours in one week, or more than ten hours in one day."
This legislation passed the New York general assembly unanimously: 90 votes for, none against. In the state senate the story was the same: 29 votes in favor, none opposed. The governor then signed the bill (Kens, Lochner v. New York: Economic Regulation on Trial, 1998, pp. 65-66).
Sounds like looking out for the health of the bakers was the overwhelming will of the majority, doesn't it? Well, the law was challenged, and it went all the way to the U.S. Supreme Court.
Where, by a five to four vote, the old justices struck the law down. The majority declared that the law "interferes with the right of contract between the employer and employees" (Lochner at 53).
There were actually two dissents issued, but it is the one written by Justice Holmes that has garnered the most attention in the ensuing hundred years. A part of what he wrote is excerpted at the left of this column, so I won't repeat that bit, but Holmes also exclaimed:
"I strongly believe that my agreement or disagreement (with the wisdom of the bakery statute) has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract... " (Lochner at 75, emphasis mine.)
Now as I said, the observations Holmes made came in dissent. Nevertheless, as time went on, Holmes's minority opinion was treated with great respect while the majority opinion was looked at as an unwarranted overturning of majority rule; see Ferguson v. Skrupa, 372 U.S. 726 (1963). In fact, by the 1960s, Holmes was such a legal icon that the creators of the TV show Green Acres named Eddie Albert's character, an attorney turned farmer, "Oliver Wendell Douglas." You know you've made it when you are referenced in pop culture!
Well anyway, even Mr. Haney and Mr. Kimball could see that in a democracy, the majority view should usually prevail. And that's where the problem comes up with the analogy Ellen Degeneres used in making her point in favor of gay marriage. She brought up voting rights, which logically leads to voters, which passes naturally to the right of the majority of those voters to embody their opinions in law, as Holmes would say.
But if you support gay marriage, frankly, the LAST thing you should do is bring up voting. Because if there is one thing about gay marriage that can't be denied, it's that wherever and whenever the voters have had a choice, they have said "no" to same sex matrimony. Ellen alluded to the California Supreme Court's legalization of gay marriage; take a look at the dissent in that very case. In the wake of the Massachusetts Supreme Court's legalization of gay marriage in 2003, the dissent notes:
"(A)s of January 2006, ‘39 states [had]either passed laws or amended their constitutions (or done both) to prohibit same-sex marriages, to deny recognition of same-sex marriages from other jurisdictions, and/or to deny recognition to other types of same-sex relationships’]." (Citing a law review article), http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF , p. 138.
Laws are passed, state constitutions are amended, by the will of the people, either voting directly or thorough their elected representatives. And if in less than three years following the Massachusetts high court authorizing gay marriage you had majorities in thirty-nine states clearly expressing their displeasure with the idea, you know that this is an issue many people feel just as strongly about as Ellen does, but they've reached the opposite conclusion. Even in California, where gay marriage is legal, for the moment, this is not the will of the majority, where a recent poll showed that 54% of the electorate would vote in favor of a state constitutional amendment to overturn the recent court decision:
Let's face it: we only have same-sex marriage now in two states, Massachusetts and California, and in both of these states the reason it exists is not due to the will of the people, but rather because of a four to three vote by the state's highest court. Regardless of your position on this issue, it is a bit troubling that the Massachusetts Supreme Court, by one vote, overturned four hundred years of precedent in the Bay State, going all the way back to when the Pilgrims landed. One could argue that these courts have done exactly what the U.S. Supreme Court did in Lochner, disregarding clear evidence of the will of the majority.
So does that leave Ellen and people who feel as she does completely out in the cold?
Not necessarily. You will note if you reread what I've written to this point that the one pole of American liberty is that the majority should usually have it's way. But usually isn't always, and the other pole of American liberty protects individuals from the majority. And, as with the first pole, the concept is clearly and memorably expressed in a case heard by the U.S. Supreme Court.
In 1943, the Court delivered its ruling in West Virginia State Board of Ed. v. Barnette, 319 U.S. 624. At issue was a law that required all students in public schools to participate in a salute to the American flag. Refusal to do so was regarded as insubordination, for which the student could be expelled. The problem is, the Jehovah's Witnesses believe that the flag is a graven image and thus to salute it would be a violation of their interpretation of Exodus 20: 4-5. (Barnette at 629). So what of the children of Jehovah's Witnesses in the public schools; would they be excused from the flag salute for religious reasons or could they be expelled if they failed to comply with the rule?
The Court ruled that these children must be excused from saluting the flag; the religious freedoms guaranteed by the First Amendment mandate it. But just as Holmes in his Lochner dissent outlined a general theory of majority rule, in Barnette Justice Robert Jackson's opinion spoke to the limits of rule by the most numerous:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (Barnette at 638, emphasis mine.)
This was a stunning reversal, by the way; just three years earlier in a similar case the Court ruled over a single dissent that a school board could require every student to salute the flag, even those who objected due to their religious beliefs; see Minersville School District v. Gobitis, 310 U.S. 586 (1940). Funny how a couple of years fighting Nazis serves to make people uncomfortable with the notion of forcing conformity, isn't it?
So those are the two "magnetic" poles. One pole is Holmes's point about majority rule. The other is Jackson's reminder that there are some things the majority cannot touch. And the reason we have controversies in a democracy is that sometimes it's appropriate to embrace one pole; sometimes it's best to stand by the other pole. These poles are rivals, but they are not enemies, and it is essential for us to understand the creative tension between them. My use of the phrase "magnetic poles" implies a global metaphor, and to carry that analogy further, free government functions best when we stand on the symbolic equator midway between the poles and carefully consider which one to lean towards.
Which brings me back to Ellen's point about voting. In the context of her argument in favor of same-sex marriage, she is undermining her position by leaning towards the wrong pole. Voting is all about what fifty percent plus one of the voters want, and it's pretty clear that fifty percent plus one of the folks do NOT want gay marriages to be legal. What Ellen and others who agree with her must do is demonstrate that same-sex marriage is, to paraphrase Justice Jackson, a "fundamental right that may not be submitted to vote."
In other words, Ellen has to show that denying any woman a marriage certificate because her intended spouse is also a woman is more like making Jehovah's witnesses salute the flag than it is like making bakery bosses observe a ten hour day for their employees. How would she best do that?
Well, one drawback she has is that unlike the Barnette case, where freedom of religion was at issue, gay marriage advocates are not dealing with something that is specifically mentioned in the Bill of Rights. The first eight amendments to the Constitution require that the press be free, that property may not be searched without a warrant, that no one can be convicted of a crime except by jury verdict, etc. These amendments say nothing at all about marriage, homosexual or heterosexual.
Then again, Justice Jackson didn't simply write that freedom of worship, speech, and other things specified in the Constitution were protected, he spoke of "fundamental rights" not being subject to policing by the majority. So that raises the question: is marriage a fundamental right that might "depend on the outcome of no elections" even though it's not enumerated in the Bill of Rights?
Well consider this: over forty years ago, Chief Justice Earl Warren of the U.S. Supreme Court wrote in a unanimous opinion:
"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1, 12 (1967).
It's tempting to be a wise guy here and point out that it would strengthen Ellen's case if Warren had written that marriage is essential to happiness "between free men" instead of "by free men," but the matter at issue in Loving wasn't laws against same-sex marriage, it was laws against interracial marriage. The Warren Court struck those laws down.
Yes, there are some rather clear differences between statutes requiring potential wedded couples to be of the same race and statutes requiring they be of different genders. I'm not going to dwell on those dissimilarities here; suffice it to say that as I noted in a post a couple of weeks ago, there are nine states plus the District of Columbia that never had laws preventing a man and a woman of different races to marry, while no state ever allowed marriage between people of like gender until the Massachusetts Supreme Court acted a few years ago, http://brettsconstitution.blogspot.com/2008/05/rest-in-peace-mrs-loving.html.
Still, for those like Ellen Degeneres who hope to see gay marriage recognized by all fifty states, not just by two, the approach they must take--for now, at least--is to demonstrate effectively that in this matter it's not majority rule that counts. Rather, they must advocate that the right of gay couple to marry is, to paraphrase Justice Jackson's assertion in Barnette, "withdrawn from the vicissitudes of political controversy and placed beyond the reach of majorities."