Yesterday’s vote in North Carolina has been followed by all the usual (and predictable) punditry, from outrage to triumphalism. Supporters of Amendment 1 have rightly pointed out that in every state where it’s been put to a vote (31 and counting), a clear majority have voted to ban gay marriage. Whereas the eight states which have legalized gay marriage have all done so by judicial or legislative fiat.
The argument being that when democracy is allowed to run its course, gay marriage loses. Yay for democracy . . . right?
Regardless of which side you take in the gay marriage debate, let me propose that this fight-by-popular-vote is dangerous, self-serving, and profoundly misinformed. Especially for those who revere the founding fathers and the Constitution.
The United States is not a democracy. Nor was it ever meant to be one. To be sure, politicians on both sides have exploited and contributed to our national ignorance by hailing the virtues of “democracy” every time they’re in front of the cameras. Which is why we all need a history refresher.
The Constitution, revisited
In the late 1780s, after America’s first attempt at governance under the Articles of Confederation proved a disaster, the founding fathers returned to the drawing board and wrote the Constitution of the United States.
It was a bold, unprecedented, and highly controversial vision of government. In order to sell it to the public, three of the Constitution’s framers — Alexander Hamilton, James Madison, and John Jay — anonymously wrote the Federalist Papers. Their aim was to explain and defend this new form of government, which they insisted was neither monarchy nor democracy but a republic — a system of representative government.
Why is this important? And what does it have to do with a marriage amendment in North Carolina?
It matters because the kind of “majority rule” currently (and, in all likelihood, temporarily) embraced by opponents of gay marriage just so happens to be the exact opposite of what the founding fathers intended for this country.
Consider these excerpts on the perils of democracy from Federalist No. 10, written by James Madison, who is also known as the “Father of the Constitution.”
Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.
To secure the public good and the private rights against the danger of [majority rule] is then the great object to which our inquiries are directed.
Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority . . . must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.
Pure democracy . . . can admit no cure for the mischiefs of faction. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
In Federalist No. 51 —famous for its exploration of the doctrine of checks and balances, or “separation of powers” — Madison also addressed the importance of protecting minority rights against the tyranny of majority rule:
It is of great importance in a republic . . . to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. In a free government the security for civil rights must be the same as that for religious rights.
Justice is the end [i.e. goal] of government. It is the end of civil society. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature.
Whereas under the form of government laid out by Madison’s Constitution . . .
Even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so . . . will the more powerful factions or parties be induced to wish for a government which will protect all parties, the weaker as well as the more powerful.
In other words, direct democracy or “majority rule” was not what the founders had in mind because they knew that left to its own devices, the majority would invariably oppress and deprive the minority of its rights.
Traditional marriage advocates celebrate their string of ballot victories, including the latest in North Carolina, as if a simple majority vote is all the proof needed that gay marriage is bad for society.
But there’s a reason things like slavery, civil rights, and women’s suffrage weren’t put to a popular vote. There’s a reason why the U.S. Senate is structured so a minority of senators can thwart the legislative agenda of a simple majority. (There’s also a reason why senators weren’t directly elected by the public until the Seventeenth Amendment was ratified in 1913.)
In all likelihood, the founding fathers would have been horrified at the prospect of gay marriage.
To which Madison and the other framers of the Constitution would say: “But that’s exactly why we didn’t give you direct democracy.”
What goes around . . .
There’s an even bigger consideration, to which Madison alludes near the end of Federalist No. 51. Majority rule is a fickle thing, as Republicans learned in 2006 and Democrats in 2010.
It’s in the majority’s best interest not to use their power to oppress the minority — if not for more virtuous reasons, then for the simple fact that they may not always be the majority.
Public opinion is shifting on gay marriage. Maybe not everywhere at the same pace, but it’s shifting all the same — and not in favor of “traditional marriage,” despite some overconfident claims to the contrary.
Today, the country is evenly split on gay marriage, with 50% in favor and 48% against. The National Organization for Marriage makes much of the fact that support is down three points from a year ago. But the larger trend is clearly not in their favor. Fifteen years ago, only a quarter of Americans supported gay marriage. That number has doubled in half a generation.
Opposition to gay marriage will almost certainly become a minority view by the end of this decade, if not sooner. Which should give pause to traditional marriage advocates who are currently using the brute force of majority rule to impose their will.
Someday, opponents of gay rights will be a distinct minority in this country, and they may suddenly find the tables turned. They may find their views (and their right to hold them) being put to a referendum.
Which, let me be clear, would be every bit as much a trampling of the Constitution as what they’re currently doing.
The Constitution was designed to protect the rights of the minority — whether it’s the gay couple who just wants to have access to the same rights and benefits as heterosexuals, or the evangelical who believes homosexuality is a sin against God and nature.
Either way, this “battle by referendum” is a lose-lose proposition.
Side note #1: I believe the Federalist Papers should be required reading for every American student. I’m grateful to my political science advisor in college, Philip Loy (who’s retiring this year), for making us read these important founding documents.
Side note #2: Another perspectives worth reading can be found here: “How to Win a Culture War and Lose a Generation” by Rachel Held Evans.