On marriage and democracy

On marriage and democracy

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This week, several lawsuits are challenging bans on same-sex marriage and related benefits — in Massachusetts at the federal level and in California at the state level.

The suit in Massachusetts targets the Defense of Marriage Act passed in 1996, when Hawaii was considering legalizing gay marriage — and Congress wanted to ensure the rest of the country wouldn’t have to honor those marriages.

Filed on Tuesday in Boston, the lawsuit only focuses on the provision of DOMA that prevents the federal government from giving benefits to same-sex couples; states would still retain the right to allow (or ban) same-sex marriage.

In California, legal arguments started this week in the effort to overturn Proposition 8, the voter referendum that banned gay marriage in the state.

Both raise constitutional challenges at the federal and state levels, respectively. In the DOMA suit, the question will be if Congress exceeded its authority when it barred benefits at the federal level strictly because the couples are of the same sex. With that reasoning, it could even be considered sex discrimination, as one partner is not the “correct” sex.

For California, the question is if popular vote can restrict rights previously granted by the state Supreme Court. There, the court had ruled earlier in the year that barring same-sex couples from marrying was discrimination. About 18,000 couples got married in the state after the ruling.

Interestingly, the California legislature already supports same-sex marriage, and has repeatedly passed legislation allowing it; Gov. Arnold Schwarzenegger routinely vetoes it.

The November vote rescinding the right to marry is the first time in California’s history that a popular vote removed a right specifically given by the court.

That alone raises some interesting questions, such as, Will the court allow a majority of voters to determine what rights minority groups are allowed to have? Framed that way, it seems ludicrous that measure ever made it to the ballot.

The judicial branch of the government is part of the system of checks and balances, there to balance the legislative and executive branches — and, yes, to protect the minority from the majority.

While the United States likes to call itself a strict democracy, technically speaking, it’s not. Technically, the U.S. is a republic, where the populace elects representatives who make decisions on their behalf. Yes, the U.S. has open and free elections, but in a pure democracy, everyone would vote on everything — and could easily produce a “tyranny of the majority.”

To be sure, that is not what our forebears had in mind when they established the American system of government. In fact, the Electoral College also comes from this mindset. While the nation might have outgrown the need for the Electoral College (or perhaps it just needs an update), the checks-and-balances system is still necessary to protect the minority.

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