Based on his dissent from the majority opinion that overturned the Defence of Marriage Act, Justice Antonin Scalia does not really believe in democracy, or at least the kind of democracy that our Constitution holds.
What Scalia supports is the absolute rule of the majority, a majoritocracy. But the United States is founded on the dual principles of the government of the people by the people, combined with protection for the rights of the minority.
That is, in our system the majority rules, unless the majority's will would violate the basic, constitutionally-guaranteed rights, of an individual or group. Those rights are enumerated in our Bill of Rights, which are amendments to the Constitution. Thus anything that would violate these rights can only be overturned by another constitutional amendment -- not just a vote of the majority, nor by the Supreme Court. Many SCOTUS decisions come down to finding a balance between two different rights in conflict.
Obviously, Scalia doesn't think that he is wrong. He just doesn't think that equal protection, when it comes to marriage, is a guaranteed right. So the argument is really about what those basic rights include. And he thinks that the majority in each state has the right to define who can marry in that state.
Conservatives claim that gay marriage would destroy the sanctity of marriage. They must think that the institution of marriage is pretty fragile if it cannot survive opening its ranks to a few thousand other committed couples.
I would argue that those for marriage equality have a higher opinion of marriage than the conservatives do, because they think the institute is more important than the exact combination of who gets to be married.
If marriage would be destroyed by including John and Jack, then it must be on its last legs and about to tip over already.
Ralph
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Conservatives like to reduce the argument to the simplistic question of whether the Constitution guarantess a "right to same-sex marriage."
ReplyDeleteWell, no, it does not explicitly say so. But then neither does it explicitly guarantee a right to opposite-sex marriage. The question is more properly phrased: Is there any state interest in treating same-sex couples differetnly from opposite-sex couples when it comes to marriage?
The argument of procreation and what's best for children has been debunked and disproved. The fact that conservatives still argue the opposite does not make it so.