The California Supreme Court’s decision in Strauss v. Horton upheld the referendum to amend the state Constitution to do away with the court’s own decision holding that denial of marriage to gay couples was unconstitutional in In Re Marriage Cases. Aside from it being a silly exercise in futility that will ultimately prove embarrassing to California, as other states pass laws entitling gay couples to marry, it raises an uglier question.

It is axiomatic that the Constitution, whether state or federal, protects the minority from the tyranny of the majority.  Granted, most people don’t realize this concept, being schooled in the idea that the will of the majority should always prevail and often confused when courts don’t seem to rule the way that the masses think it should.  But for those familiar with the concept, and those who have the capacity to understand it once explained, the idea that there are basic rights guaranteed by the Constitution to all, and these cannot be taken away because the majority doesn’t like the minority, it seems an awfully important protection.

What if the majority of this country, perceiving itself to be good, law-abiding folk, decides that it’s had enough of coddling criminals, appreciates the fine work done by law enforcement in protecting us, and concludes that it’s a terrible waste of time and effort to handcuff the police in doing their job when it comes to career criminals. 

Somebody offers an amendment to the Constitution that any person who has been previously convicted of a serious violent crime will not be entitled to due process thereafter, but if determined by a police officer to have committed a second serious crime may be summarily punished according to law.  Don’t quibble about  the details of the amendment, as they aren’t important.  What’s important is that a majority could amend the Constitution to deprive an unpopular citizen of what was previously considered a fundamental right.  Sure, it would be wrong to upend due process, but recidivist serious criminals have few friends, and they do take a toll on society.

Why not?  If the fine people of California can decide that gays don’t deserve equal protection, why can’t criminals not deserve due process?  We can go down the list of groups we don’t like and identify which of our fundamental rights should be denied them.  I bet the 4th Amendment would be gone in a flash; after all, law-abiding folks have nothing to fear from the cops.  And the 6th is just a full-employment for lawyers amendment, and nobody likes lawyers. 

The California Supreme Court’s Strauss decision dealt with a technical issue, whether Proposition 8 was an amendment or a revision.  Typical of the limited focus of lawyers and courts, it didn’t deal with the heart of the problem.  Is our constitutional democracy so fragile that a well-financed group that is able to muster a majority of votes, that disapproves of rights being given a discrete and unpopular group, can change a Constitution so as to deprive that unpopular group of a fundamental right?

Apparently so, as I’ve seen no one consider that if gays are not entitled to equal protection in marriage, then they can be denied equal protection as to any other right by dint of majority vote.  If the tyranny of the majority is constitutionally permissible, what group is next on the agenda?  I’m probably a member of a few groups that might not fair well.

According to who you talk to, there’s a long list of minority groups in this nation who are looked at askance by the majority.  Can an angry majority decide to eliminate the basic rights to people we don’t like?  Are due process and equal protection that fragile?