I had wanted to respond to an opinion article published March 10, titled “Calif. Proposition 8 should be upheld.”
The fundamental role of the court is to ensure that the rights of the minority are protected from the majority, even if it extends to overturning legislation that received a majority vote. The absence or failure of such an institution would allow the majority to judge the (moral) validity of its own cause.
The Civil Rights movement of the 1960s made most of its advances through the judicial branch. The Supreme Court overturned numerous pieces of discriminatory legislation that had been voted into law by the will of the majority. Perhaps most relevant to the same-sex marriage issue, Loving v. Virginia (1967) struck down a Virginia law that made interracial marriage illegal.
An important parallel can be drawn between the same-sex marriage movement and the fight to repeal miscegenation laws during the Civil Rights era. Gays, gender and racial groups all occupy the same position in civil society. Just as there is no basis for denying the civil benefit of marriage to two individuals of a different race, there is no basis for denying marriage to same-sex couples.
So, the “will of the majority” argument not only side steps the issue but has historically been used to validate upholding discriminatory legislation. The fundamental question that the Court is ostensibly dealing with is whether same-sex marriage constitutes a fundamental right.
Senior, political science