Friday, August 01, 2003

Protecting the Rights of Minorities in a Democracy

A while back Merideth posted an interesting question about legislating civil rights - "And I have to wonder (I really don't know. Perhaps one of you will.) did we end segregation with a majority, or with just enough outrage to make legislators examine their consciences? Women's voting rights? The subhuman value placed on women and African Americans was legislated by a majority who saw no compelling moral reason to treat these people (as groups) as much more than property." The question is should legislation be guided by majority opinion, or should legislators lead the way by passing civil rights laws even when the majority of Americans disagree with those laws. This issue has come up frequently in recent discussions about homosexual rights and especially homosexual marriage. Many moderates feel that these rights should eventually be extended to gays and lesbians, but not yet. They want to give the country time to "catch up" with liberals - perhaps when poll numbers indicate that the majority of Americans support these changes, then it will be time to pass such legislation.

Andrew Sullivan has a partial answer for Merideth's question in his column today, in regards to the last major change in marriage law, miscegenation. "In 1967, the Supreme Court struck down state bans on inter-racial marriage on equal protection grounds. But what's interesting is how unpopular this was at the time. The Gallup poll in 1968 found a whopping 72 percent of the public opposed such marriages. That's markedly more than the opposition to same-sex marriage today (which is in the 50 - 60 percent range, and in the states considering it, actually a minority view). Why was that not an example of outrageous judicial activism? Yes, I know that equal protection on grounds of race has far more teeth in constitutional law. But still. This was a hugely unpopular and undemocratic move. It directly thwarted the democratic will of the people, especially in those states forced by judicial fiat to let blacks marry whites. It was judicial tyranny at the expense of democracy. " Would any of us now argue that these laws should not have been struck down? As Merideth pointed out, there's a reason we live in a representative democracy - the majority can be wrong and without safeguards to protect the rights of minorities, horrific atrocities and injustices can be inflicted on those with less power and political capital.

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