Chief Judge Vaughn Walker’s decision in  Perry v. Schwarzenegger, holding that California’s Prop 8, outlawing same-sex marriage is unconstitutional under both the Equal Protection and Due Process clauses, will be discussed and analyzed to death today, as well it should be.  One of the most thorough discussions can be found at Poliglot, which clearly has a stake in the outcome.

Whether this decision is viewed as utterly obvious or the death knoll of proper society, and I fall into the former camp, there are others far more knowledgeable about constitutional law to offer critical perspective.  My interest is limited to one line in Judge Walker’s opinion.

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the  outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).

In a nation guided by platitudes, love of democracy often clouds our appreciation of constitutional limits.  There are some minimum bars to the will of the majority.  This is intended to prevent the Tyranny of the Majority.  The idea is counter-intuitive to many, for if the majority of Americans (or Californians in this case) decide that they want something, then that something is what they should get.  That’s democracy.  That’s America.  That’s the will of the People!

Not always.  The Constitution provides a floor below which no one who calls themselves an American can go.  It’s far from being an overarching set of regulations that prescribe our daily lives, yet states a bunch of overarching rights that can’t be violated if one wishes to be an American.  The rights to Equal Protection and Due Process are amongst them. So are the right to remain silent and be secure in your papers and effects.  Some are protected with greater zeal than others.

What the majority of people cannot do is decide to take away those rights for the minority.  Consider the days when WASPs were the majority, held all the important offices and lived in the nice houses.  What if they saw the writing on the wall and decided to pass a law that prohibited people of Italian, German and Irish descent from sending their children to school.  What better way to keep the newbies down than to deny them an education?  This would maintain a ready pool of uneducated workers for the crappy jobs, thus manning the factories to produce revenues for the WASP owners, plus keep the schools where WASP children went free of unsavory characters with odd accents.  It’s a great deal for the majority.

They might have done that, you know.  But they couldn’t, because the soul of our government, the Constitution, does not tolerate the majority becoming the tyrant to the minority. 

There will be plenty of otherwise nice folks who will rail about the evils of homosexuality.  They will say that it’s not about hating gay men or lesbians (and why is there a separate word, lesbian, if gay covers it?), but about preserving the natural order of things so that society doesn’t explode and get nasty gay goo all over us.  They will believe it with all their heart, and express it with oozing sincerity and droopy eyelids, imploring others to “get it” before it’s too late.

Whether it’s the will of the majority of California voters, whether they are absolutely right that homosexuality is the most venal thing to ever strike at the heart of the sacred institution of marriage, doesn’t matter.  No matter how strongly, how sincerely you believe that this is the most horrible thing to ever happen to fine, God-fearing men and women, who to shoot out kiddies to repopulate the church pews, it doesn’t matter.  The majority cannot proscribe the rights of the minority, whether it’s a minority of 49.9% or .0009%.  The majority cannot be tyrants.

And if you don’t stand up for this premise on behalf of gays and lesbians, you can bet there will be no one to stand up on behalf of those accused of crimes, perhaps the only group to be hated more than homosexuals, though that proposition may be a matter of some dispute.