Category: Make Ha-Ha

Mark at Publius Endures provides the perfect reaction to yesterday’s ruling by the California Supreme Court:

But first – after all the claims of the Religious Right over the last few years that same-sex marriage would destroy marriage as an institution, I’ll admit my commute home from work this evening was filled with fear. Would my wife and child still be home, waiting for me? Would my wife still be wearing her wedding ring? Would my wedding ring begin to fade away, as if it were a photograph in the hands of Marty McFly? By the time I was home, I was in a cold sweat. When I walked in the door, my worst fears appeared to be coming true – my wife wasn’t wearing her wedding ring! I immediately broke down into tears, begging Chri….err, the Ghost of Jerry Falwell for forgiveness. My confused wife then informed me that she had just taken her ring off to take a quick shower. In other words: California now allows same sex marriage, but my marriage didn’t fall apart! Shocking, I know. But also true.

That’s the reality when religious extremists offer their doomsday scenario for the private, religious institution of marriage if the public, civil institution becomes fully equal as an individual right rather than the silly notion of a collective right between only one man and one woman.

The rest of Mark’s analysis is good, too. For example, this is the second best paragraph I’ll read today:

As many libertarians are quick to point out democracy is a means, not an end in itself – democracy without freedom is meaningless; freedom without democracy is not (think Monaco here, for example). Moreover, we do not live in a pure democracy, but in a constitutional republic; a republic which, according to Madison’s Federalist #10 (you knew this was coming), is set up to prevent any one group from gaining dominance over any other group. The constitutional republic that is the United States, and which forms the template for many, even most, state constitutions (including, I think, California’s, despite its bad habit of direct democracy), is specifically intended to prevent the tyranny of the majority. In other words, our system of government is supposed to distrust mob rule every bit as much as it distrusts the rule of a king. Indeed, the authors of the Constitution viewed the legislature as the most dangerous branch of government precisely because it was susceptible to the tyranny of the majority.

Despite its bad habit of direct democracy, indeed. For further consideration, read Ed Brayton’s dismissal of the Family Research Council’s predictably unprincipled response.

With the current discussion of judicial activism, the corresponding arguments about legislative activism (mostly noted by libertarians) are also relevant. Sometimes that activism takes the form of abdication of duty, to the point that it’s probably more appropriate to call it legislative “inactivism”.

I’m on record that legislatures must protect male minors to the same extent that female minors are currently (and correctly) protected from medically unnecessary genital surgery. (Most recently in the comments here.) Many disagree with that, basing their opinion on the traditional and cultural justifications for the non-medical circumcision of male children. Yet, it’s just as much a tyranny of the majority when a legislature fails to act in defense of rights¹. When it stands idly by while rights are violated because the violation is based on tradition, the legislature allows the perceived majority opinion to justify inaction. Just as prohibition based on mob rule may be improper, permission based on mob rule may be improper. The legislature’s approach must be based on first principles of individual rights. Majority opinion does not supersede the rights of the minority, even if that minority is a lone individual.

¹ The Congress intentionally ignored basic human rights principles by invoking a bizarre mental jujitsu to permit continued male genital mutilation during debate on the Female Genital Mutilation Act in 1995. I’m working on a separate entry on this. I’ll update this with a link when I post it.