Gay Marriage And How Democracy Works

Image credit: National Archives

One of the consequences of the recent upsurge in the number of states that have decided that gay marriage is a right has been an attendant upsurge in declarations that having the courts decide this is all wrong. They seem to think that this is somehow undemocratic, as if the will of the people were somehow being thwarted here.

Generally, these objections have come from the sorts of people who slept through civics class so they'd be sharp for gym, so I'll try to fill in the blanks in their education.

First of all, our government is (allegedly) guided by a document known as the Constitution. A long time ago, all the states we live in signed up to be governed by it, and so it's the ultimate authority in matters of government in the United States.

It's a pretty small document when you think about it, just a few pages really. That's because it doesn't explain everything about how a government should be run. It just discusses the basics. Coming from an engineering background, I think of the Constitution as a specification. A specification is a document that defines what is to be designed. It will explain any limitations on the design, such as how much it should cost, and any things that those commissioning the design think are particularly important. If it's a specification for a new airplane design, for instance, it might not even mention that it will have wings, as this may be assumed to be part of the design that the engineers will work out for themselves. If a machine can be designed, for instance, that can maintain an altitude of 40,000 feet (12,000 meters) at 600 miles per hour (1,000 kilometers/hour), without wings, then the specification writer might be perfectly OK with that. If, on the other hand, the specification requires that the design use titanium rivets and for it to be painted any color other than pink, then those are restrictions the designers must live with.

The next step in the engineering process is the actual construction of the thing that's been defined by the design. The design is documented in a number of ways that usually involve both drawings and other documents such as manuals or procedures. The manufacturers or contractors who build the product often do not interpret those designs exactly. In some cases, they make mistakes. In others, they improvise either to lower the cost of the product, or out of necessity.

The Constitution works in similar ways. The design produced to this specification are the laws of the federal and state governments. The Constitution, for instance, doesn't say that murder is a crime, although it does mention treason (in Article III), and piracy (in Article I, Section 8). The people who wrote it assumed that governments would be smart enough to prohibit those things. What they did was define what the government could and could not do to enforce those laws, and what it could and could not do in other areas.

As with contractors trying to implement a design, sometimes the laws are less than perfect reflections of the Constitution that governs them.

As I mentioned earlier, this is something that all the states now in the union signed up to follow. They promised to follow it, because Article VI made that part of the bargain:

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

U.S Constitution: Article VI

The way that the framers of the Constitution tried to ensure that government would be bound by the Constitution was to set up a court system that could interpret it. Article III defines the Supreme Court, and specifies what powers and responsibilities it will have. Section 2 includes this sentence:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

U.S Constitution: Article III, Section 2

Obviously, I've added that emphasis, which points out that courts, to at least some degree, were allowed to interpret what the law was. Alexander Hamilton, in The Federalist Number 78 wrote this about the role of the courts:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

The Federalist No. 78: The Judiciary Department

In a perfect society, where the government always correctly interpreted and observed the law, court powers of this nature would be unnecessary. Of course, in a perfect society, courts would probably be unnecessary in every way we now use them.

Speaking of imperfection, there was a little imperfection in our society at one time that led to this amendment to the Constitution:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S Constitution: Amendment XIV

This amendment goes on at length about proportional representation and the right to vote, but the heart of it, for the purposes of this discussion, is Section 1. Particularly important is the part I've emphasized, which states that no citizen of the United States should have his rights limited or revoked without just cause. This is one of the justifications for allowing gay marriage - it's a right that homosexuals shouldn't be denied, since we now realize that there is no cause.

Who that "we" are is an open question, of course, but that brings us back to a part of the engineering process I haven't mentioned yet. In the case of our hypothetical wingless, titanium-riveted, non-pink aircraft, the owner is free to add wings, replace the titanium rivets with steel, and paint it pink later should he want to. At least, that's true providing he can get the aircraft recertified after the first two changes. As the owners of our society, we're free to change our minds about things. Over the years, the vast majority of us have come to the conclusion that homosexuality isn't a crime or an aberration. Instead, it's part of the normal variation in human genetic possibilities. It's no more an aberration than curly hair, pale skin, or B-negative blood. Since homosexuality is no longer a crime or something to be concerned about for the future of society, denying a right to these people is clearly prohibited by the Fourteenth Admendment.

While I agree that it would be just peachy if all the state legislatures would just stand up and pass laws saying that gay marriage is a legal right, having the courts decide these matters isn't undemocratic. Having courts decide these things is part of living in a democratic society. To take another example, consider what's going on in New Hampshire right now:

CONCORD – The New Hampshire House yesterday sent the gay marriage bill to Gov. John Lynch for signature, voting to agree with Senate changes to the bill.

House Bill 436, which extends the state's marriage laws to include same-sex couples, won House approval on a vote of 178-167. The bill's wording differs from the version the House passed in March, but its effect is basically the same.

"Any person ... may marry any other eligible person regardless of gender," the bill states.

Gov. Lynch now has final say on gay marriage. He can sign it into law, veto it or let it become law without his signature.

Gay Marriage Bill: All Eyes On Lynch

How democratic is that? One guy gets to decide whether a bill becomes law or not. In the end, whether this bill passes is determined by the beliefs of this one man. Not only are his beliefs about gay rights important, but so are his beliefs about his role in government and his belief in how much the majority can define the rules of a society. Nevertheless, this is how our government works, since we've decided that executives of a government should have a say about the laws that they will have to enforce. Supreme courts are nearly always made up of more than one person, and a majority vote decides the outcome of their cases. So which is less democratic?

Democracies don't just work on the principle of majority rule. Mobs work on the principle of majority rule. What separates democracies from mobs is that the former recognize that people have rights, and that however unpopular the way they exercise those rights may be, they should be allowed to do so if they are not demonstrably hurting that society by doing so. The power of the courts to interpret the Constitution is one of the guarantees we have that our rights won't be taken away by our government. That's what they've done in the case of gay marriage.

If you don't like how the courts interpret the Constitution, then Article V provides a way to fix that:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

U.S Constitution: Article V

That's how democracy works.

Now, please stay awake in class next time.

Afterword: Just to be clear, I'm not a lawyer of any type, let alone a Constitutional lawyer. I recognize that there are legal excuses, and possibly even legal reasons, for restricting gay marriage. That's for the courts and legislatures to decide. My argument here is with the idea that having the courts decide this question is somehow innately undemocratic.

UPDATE: Due to my hitting the Return key once too often, this article was published early. It's now complete, pending corrections and updates.