Civil Rights on the Ballot
I'm still considering my response to Tuesday's election. I am not ready to be prematurely joyful. But there is one piece of welcome news from Massachusetts that I do want to say a word about.
Yesterday, the Massachusetts legislature approved a nice little procedural maneuver that will (or should) put an end to efforts to hold a referendum to amend the State's Constitution and ban same-sex marriages. If it can't get through the Mass. legislature now, it's hardly likely to anytime soon considering the disarray in which Tuesday's election left the Republican party.
'Nuff said? Almost
Representative Michael A. Costello, a strong opponent of the amendment, had this to say: “It’s never been proper to put civil rights on the ballot. So we killed it through procedure, rather than on substance.”
I think he's exactly right. Civil Rights is not a ballot issue. There is a reason that this Country (and it's constituent States) adopted the doctrine of judicial review. Civil Rights are NOT popular. It took the bloodiest war in U.S. history to establish the principle that people should not be kept as slaves. It took almost another hundred years befor the principle "separate but equal" was discarded for the humbug it was. . . and that was by Court fiat. Not public referendum. The simple act of going to school by seven black students required their protection by the National Guard. Riots over school integration ripped this Country from Arkansas to Massachusetts.
In the 1960's (that's right, '60's) when the Supreme Court held that laws prohibiting blacks from marrying whites there were riots again. Mixed race couples required round the clock police protection. Polls showed that 70% of the Country opposed mixed-race marriage (in fact it was a crime in 37 states, and only one Court had declared such laws unconstitutional before the Supreme Court).
Would there be Miranda warnings if people had a chance to vote on them?
If the Supreme Court had not held there was an enforceable right to privacy, it might still be illegal to sell condoms in Connecticut, or for a gay couple (even an unmarried one) to engage in private sexual conduct in Texas.
etc. etc.
The point again is that Civil Rights are there to protect minorities from oppression by the majority. I keep harping on this point, but it is important. The German people elected to make Adolf Hitler their leader. They did it in full and fair elections and they voted overwhelmingly to make Hitler chancellor and his party the National Socialists (Nazi's) the majority party in the legislature. In other words, voting is not what makes a country democratic. Saddam Hussein held elections. He won 98% of the votes. That didn't make his country democratic.
What makes a country democratic is its ability to protect its minorities from being abused by the majority. This is the realm of the Courts. An independent judiciary is necessary because it is not beholden to party or dogma. An independent judiciary is necessary because only an independent judiciary, one that has no fear for it's own safety, can protect minority rights from the will of a determined majority. Put another way, if the majority was not capable of discriminating, we wouldn't need a judiciary to review the laws.
To quote M. Gandhi: "If you are a minority of one, the truth is still the truth." A right is a right, regardless of what the majority thinks. Or to quote Rep. Costello: "It has never been proper to put civil rights on the ballot."
Which is, of course, what has happened in State after State over the past few years. Goaded on by Pres. Bush and other fanatics, State after State has voted on referendums to deny same-sex couples the right to marry. We have been submitting questions of civil rights . . . that is the very basic freedoms we take for granted. . . to the vagaries of advertising campaigns, political sloganeering and ultimately, to a vote. We can just as easily vote to amend our constitutions to permit the creation of concentration camps for illegal aliens. That doesn't make it right, and it doesn't make it just and it doesn't make it as good law.
Eventually, the U.S. Supreme Court, maybe not the Roberts court, but eventually the Court will say that the U.S. Constitution requires that states not discriminate against same sex couples in marriage and all of the rights appurtenant to marriage.
And if anyone says that is against the will of the American people: that's precisely the point.
Yesterday, the Massachusetts legislature approved a nice little procedural maneuver that will (or should) put an end to efforts to hold a referendum to amend the State's Constitution and ban same-sex marriages. If it can't get through the Mass. legislature now, it's hardly likely to anytime soon considering the disarray in which Tuesday's election left the Republican party.
'Nuff said? Almost
Representative Michael A. Costello, a strong opponent of the amendment, had this to say: “It’s never been proper to put civil rights on the ballot. So we killed it through procedure, rather than on substance.”
I think he's exactly right. Civil Rights is not a ballot issue. There is a reason that this Country (and it's constituent States) adopted the doctrine of judicial review. Civil Rights are NOT popular. It took the bloodiest war in U.S. history to establish the principle that people should not be kept as slaves. It took almost another hundred years befor the principle "separate but equal" was discarded for the humbug it was. . . and that was by Court fiat. Not public referendum. The simple act of going to school by seven black students required their protection by the National Guard. Riots over school integration ripped this Country from Arkansas to Massachusetts.
In the 1960's (that's right, '60's) when the Supreme Court held that laws prohibiting blacks from marrying whites there were riots again. Mixed race couples required round the clock police protection. Polls showed that 70% of the Country opposed mixed-race marriage (in fact it was a crime in 37 states, and only one Court had declared such laws unconstitutional before the Supreme Court).
Would there be Miranda warnings if people had a chance to vote on them?
If the Supreme Court had not held there was an enforceable right to privacy, it might still be illegal to sell condoms in Connecticut, or for a gay couple (even an unmarried one) to engage in private sexual conduct in Texas.
etc. etc.
The point again is that Civil Rights are there to protect minorities from oppression by the majority. I keep harping on this point, but it is important. The German people elected to make Adolf Hitler their leader. They did it in full and fair elections and they voted overwhelmingly to make Hitler chancellor and his party the National Socialists (Nazi's) the majority party in the legislature. In other words, voting is not what makes a country democratic. Saddam Hussein held elections. He won 98% of the votes. That didn't make his country democratic.
What makes a country democratic is its ability to protect its minorities from being abused by the majority. This is the realm of the Courts. An independent judiciary is necessary because it is not beholden to party or dogma. An independent judiciary is necessary because only an independent judiciary, one that has no fear for it's own safety, can protect minority rights from the will of a determined majority. Put another way, if the majority was not capable of discriminating, we wouldn't need a judiciary to review the laws.
To quote M. Gandhi: "If you are a minority of one, the truth is still the truth." A right is a right, regardless of what the majority thinks. Or to quote Rep. Costello: "It has never been proper to put civil rights on the ballot."
Which is, of course, what has happened in State after State over the past few years. Goaded on by Pres. Bush and other fanatics, State after State has voted on referendums to deny same-sex couples the right to marry. We have been submitting questions of civil rights . . . that is the very basic freedoms we take for granted. . . to the vagaries of advertising campaigns, political sloganeering and ultimately, to a vote. We can just as easily vote to amend our constitutions to permit the creation of concentration camps for illegal aliens. That doesn't make it right, and it doesn't make it just and it doesn't make it as good law.
Eventually, the U.S. Supreme Court, maybe not the Roberts court, but eventually the Court will say that the U.S. Constitution requires that states not discriminate against same sex couples in marriage and all of the rights appurtenant to marriage.
And if anyone says that is against the will of the American people: that's precisely the point.
posted by BuddhistAttorney | 4:03 AM
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