Today Alas, A Blog tips us to a great essay on Freespace discussing Senator Orrin Hatch's recent National Review Online article, "Like It Or Not: The Marriage Amendment Is The Democratic Way." The gist of Hatch's argument is that allowing same-sex marriage in the U.S. is an undemocratic action imposed upon Americans by a tyrannical activist judiciary. Why undemocratic? Hatch contends:

Some say the Constitution, which has seen only 27 amendments in 217 years, should not be tinkered with...[but a]ctivist lawyers and judges have forced this issue onto the national agenda. It isn't "playing politics" with the Constitution when an amendment has become the only available means of addressing this crisis.

...Democrats, who rarely meet an expansion of national power they don't like, must know that by opposing a constitutional amendment to protect marriage, judges will continue imposing same-sex marriage over the will of the people...the choice is no longer between amending the Constitution or leaving this issue to the states. The only choice is between popular resolution of the effort to protect traditional marriage or judicial resolution of this question in favor of same-sex marriage. In the face of this threat, it is flatly irresponsible for elected officials, sworn to uphold the Constitution, to sit idly by as courts corrupt our national charter and advance a social experiment explicitly rejected in state after state, and in every region of the country.

Granted, this essay was written before the FMA failed to get off the ground with the needed number of votes; but seeing that yesterday an anti-SSM state constitutional amendment passed in Missouri, the point is hardly moot. Tim Sandefur at Freespace counters,

It's pure demagoguery for Hatch to say that the courts are "undemocratic." For instance, he says that

...in most cases, [same-sex marriage] advocates turn to the courts to impose their preferred policies on their fellow citizens.... In California, even though 60 percent of voters recently approved a statewide ballot initiative to maintain traditional marriage, the California supreme court is now considering the constitutionality of that democratic action....

But the people created the judiciary, and they have it in their power (though not their rights) to destroy the judiciary power entirely. Given that choice, they have chosen, in their Constitutions, to create a judicial branch and to give to it their authority to strike down laws, even "democratic" ones, which violate the Constitution. To shout "undemocratic" at the courts when they do so is intentionally misleading and emotionalistic. When Hatch calls litigation a "legal assault...poised to strip away th[e] right to self-government," he is engaging in the sort of rhetoric utterly unworthy of a United States Senator.

The courts exist to put a check on the extremely dangerous power of the majority. Whenever anyone attacks the courts for violating the "right of self government," what he is really saying is that the majority should have unstoppable power to do whatever it wants regardless of the Constitution. Such claims should be viewed with the severest skepticism, because it is only the Constitution's limits that prevent us from becoming a government of the mob. As Madison said, if the majority is the sole judge of whether its acts are right or wrong, then "anarchy may as truly be said to reign, as in a state of nature, where the weaker individual is not secured against the violence of the stronger."

[continue reading Freespace's "Hatch and Mobocracy", via Positive Liberty]

Let's not forget that almost any major social change that requires the intervention of courts to be enacted is likely to gather accusations of "judicial activism." The truth is that the courts are still one of the most direct - if slow - means for people of any political stripe to make their voice heard. The courts are, however, effective: David-level precedent-setting cases can and do eventually topple Goliath-size status quos.

Change always tends to start at a small scale, gaining momentum slowly while suffering periodic setbacks and backlash: if fighting for freedom was easy, so many would never have been willing to shed blood for myriad causes over the years. I hesitate to pull this hoary parallel out of the sack once again, but the mere fact that a status quo has been status quo for eons doesn't make it right, or good. Take the example of slavery.

Slavery is today almost universally condemned as a violation of any human being's basic rights - but for millennia, slavery was an accepted social norm. It was an unquestioned fact that some people were simply born to be chattel, or became slaves as punishment for some crime - that's just the "way it was." Certainly slavery was bad for slaves, but good for the ruling classes. When slavery was abolished in various cultures, slaveowners suddenly found themselves frightfully short of free labor.

Now, while slavery is an obvious "wrong" whose passing no-one should mourn - and marriage is a fairly obvious "good," else why would more people ask for it - the same arguments of status quo are repeatedly trotted out as justification to restrict marriage to opposite-sex couples. "That's the way it's been for XXXX years, and that's good enough for me why it should stay the way it is." That may give the impression that what we perceive as the eternal definition of marriage is written in stone, but let's be blunt: our current American definition of marriage is not what marriage always was.

Marriage once could have meant as many wives as a man could afford. Marriage once meant that a husband had life-and-death power over his wife or wives, and no wife had power of inheritance or joint ownership. Marriage once meant only marrying within your race, your ethnic group, religion, caste or tribe - and even today, in some cultures, marriage is forever under pain of death - especially if you're a woman.

The above were all forms of "traditional marriage" - forms we no longer subscribe to, and ample evidence that what some call the "definition of marriage" is neither absolute nor unchanging given the passage of time and evolution of the world's societies. A few decades ago the U.S. courts took away the exclusivity of marriage to couples of the same race, but we often forget how much heartache those antiquated miscegenation laws caused before their dissolution - as well as the discriminatory suffering anti-SSM laws cause today and will cause tomorrow to thousands of families in our country.

Remember that one person's "rogue" is another's visionary, and Orrin Hatch's "American Way" logic has historically been used to legitimize a host of injustices. Democracy is not purely a monolithic "will of the people" that arises spontaneously or unanimously from the majority. Bestowing or taking a away a right from a minority in the name of the "majority will" requires a greater standard, else how would have women and Black persons have ever gained the right to vote in our country? Certainly not through sheer numbers or previous enfranchisement. Milton Friedman once said in his classic work Capitalism and Freedom that no true lover of liberty ever resorted to counting noses.

"But even if marriage has changed over the years, it has always involved men and women." Seeing humans as people having humanity in common - rather than dichotomous organisms processed by the ubiquitous "sorting hat" at the moment of birth - still raises eyebrows and righteous indignation. This point that "marriage has always involved men and women" ignores our modern understanding of individual rights and liberties and whether gender as 'the accident of one's birth' (like race, class, ethnicity among other divisions) can, in the 21st Century, still be sufficent cause to legislate discrimination. Repeatedly, history is showing that it is not.

Permitting same-sex couples to marry is not about eliminating the distinctions between men and women: it's about not allowing those distinctions to rule and restrict the course of people's lives. What all stepwise social changes have in common is that at some point in history, people had to be brave enough to take a stand for what they believed in and make their voices heard with placards, ballots, and yes - with gavels.

Positive Liberty ponders the Missouri Anti-SSM Amendment, the meaning of 'family', and asks why social conservatives sidestep the thorny issue of single parenthood when discussing "what's best for children" Very enlightening.: "You Can Never Be Too Careful."

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