Two decades ago, the Supreme Court of Hawaii decided on Baehr v. Miike, ruling that same-sex couples could not be discriminated against when trying to obtain a marriage license. Recently, Hawaii just passed a bill allowing for same-sex marriages in the state; the governor only has to sign the bill into law.
Two decades ago, the ruling by the Supreme Court of Hawaii was met with universal shock and a backlash immediately ensued. The Defense of Marriage Act was written specifically so that gay marriages in one state would not necessarily have to be recognized in other states, and the federal government would not recognize such gay marriages. The voters in Hawaii themselves voted on a proposition—they ended up banning gay marriage.
What is remarkable is the idea that seems to reign in America—“let the people decide”—with regards to gay marriage.
Marriage, as much as we wish it was, is no longer a religious institution—it is a civil institution, regulated by the government. A couple may pronounce their wedding vows according to their respective religions but in the end, they still have to have a wedding certificate from their city hall. Possessing a marriage certificate comes with certain benefits, regarding tax benefits, the adoption of children, visitation rights in the hospital, and others.
In my personal opinion, I am completely, utterly baffled as to how Americans could think a select group of Americans’ rights to marriage is a matter that other Americans can simply vote on. Suppose if we voted on this idea, piece by piece. Suppose we voted on a specific group, say, Jewish-Americans’ ability to enjoy tax benefits for marriages. Could we vote to say that Jewish-American marriages are not recognized by the state?
But, some would say, this is different. Same sex marriages are contrary to nature. There would be no question of whether Jewish-American, heterosexual marriages are recognized by the state because they abide by nature and promote the state interest of production of children.
Whether or not homosexual marriages abide by nature should not be voted on by the people though. We do have a democracy, but it is a democracy that is shielded from mob rule through the courts and representatives who legislate on our behalf. The rights of the people are meant to be interpreted and protected by the courts. Only the courts can determine if there is a government interest that is compelling enough to take away the rights of people. There are certainly cases where government interests do outweigh the rights of the people. For example, freedom of speech is our most cherished right, but one is not allowed to yell “Fire” in a crowded theater, because this would be a risk to public safety. One’s right to yell whatever they want is outweighed by the potential stampede and injuries.
If it were up to vote whether African-American children could attend the same schools as white children, Americans would have voted down the issue for decades longer than the Supreme Court, continuing the injustice. But more importantly, African-American children’s rights would be robbed by mob rule, which is subject to the whims of the voters, rather than a body that seriously considers precedent, US law, and people’s natural rights.
In summary—today, I did not try to analyze why the American people feel a certain way about something. Today, I questioned why they feel this at all. Whether the courts rule that homosexual marriages should be outlawed to preserve a government interest is an entirely different issue. But Americans, if they truly believe that they should be allowed to vote on the rights of their fellow Americans, have a fundamentally flawed notion of what it is to be a democracy. Yes, you vote—but you vote on other matters such as where your money goes, or if your country should go to war. But you do not vote on whether African-Americans should be able to attend the same schools as you, or if Muslim-Americans should be wiretapped more often than others.