August 4, 2010
Posted: 06:50 PM ET
By Dr. Drew Pinsky, Larry King Live Guest Blogger
I am certainly by no means a legal scholar. Nor do I have any special understanding of American History. I am an American citizen with a deep appreciation of the brilliantly balanced system our founding fathers created.
There was a reason they set up our system as a republic and not a direct democracy. The Jacksonian Revolution started us in a direction whereby direct appeal to the people and direct democracy gained a distinct priority in our value system.
But never did the founding generations expect that we might see the advent of a system where a simple appeal to a majority could result in any whim the majority might decide to assert.
A main concern of the founding fathers was to create a system that was sufficiently balanced and thoughtful so as to buffer against one group exerting its will upon another. This to them, was nothing other than mob rule. While we retain a distinct preference for the gloss of a direct democracy the fact is we are not and thankfully so.
Throughout history democracies have inevitably fractured and failed. Even the Greeks felt that a democracy was impossible in populations greater than 100,000 members. Not only are we so much larger but more heterogeneous making this even more treacherous.
Alexis De Toqueville, a Frenchman who came to America in the opening decades of the nineteenth century to study Democracy in America, in his objective assessment remained very concerned that our system had a potential to allow for something he called the Tyranny of the Majority. That is to say he was concerned that merely by being a majority one group could exert its will upon another, even restrict its civil liberties and rights.
Unfortunately, the referendum system in the State of California has become the mechanism for actualizing precisely this tyranny. The California Supreme Court determined that the argument against same sex marriage was untenable.
The opinion, written by Chief Justice Ronald M. George, cited the Court's 1948 decision in Perez v. Sharp where the state's interracial marriage ban was held unconstitutional. It found that "equal respect and dignity" of marriage is a "basic civil right" that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of the California State Constitution (source: Wikipedia).
In other words it was the concerted opinion of the judicial authority that the logic used against interracial marriage was the same as that, which was being used against same sex marriages. In spite of this very clear understanding of the law and the logic of prejudice, the response rendered by the referendum system with the passage of Proposition 8 was: “too bad”.
Now my point here is not to get into whether or not gay marriage is good, right or should even be included in the definition of what we consider marriage. My concern is that the referendum system in California can rescind the civil rights of a minority group, independent of the operation of other governmental authority.
Abraham Lincoln famously argued in his debates with Stephen Douglas that there are certain things that the majority simply cannot decide. We simply could not allow for a majority to decide that it is acceptable to enslave another population of humans no matter how substantial that majority.
He famously quipped that “squatter sovereignty’s” right to determine whether or not a state should be free or slave was based on an argument that was thinner that the soup made from the shadow of a pigeon that was starved to death! And so are the arguments flying about today to justify and legitimate Prop 8 and the Referendum system from which it was unleashed.
I ask my fellow citizens to give this careful thought. The protection against the tyranny of the majority has been an important consideration throughout the history of our government and we have quietly allowed, out of our own ignorance and apathy, a very important threshold to be crossed. A majority has restricted the basic civil rights of a minority. Beware, it may be your rights next to be trampled merely because there are enough people who think it should be so.
Dr. Drew Pinsky is the host of VH1's "Celebrity Rehab" and a frequent guest on Larry King Live.
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