Edmonton Journal

Majority rules one way or another

Same-sex marriage decision underscore­s the constituti­on

- ANDREW COYNE National Post

When the people of Ireland voted by referendum last month to legalize same-sex marriage, it set off an uncertain volley of celebratio­n and unease. To be sure, enlightene­d thought was unanimous in saying, it was welcome news that gays and lesbians in Ireland would now have the same right as heterosexu­als to marry. But surely there was something unsettling in the right of the minority being put to a vote of the majority. What if it had gone the other way?

A contrary view held that, if anything, it was better to have the rights of the minority upheld in this way, with the express consent of the majority, rather than, as the United States has just done, by a ruling of the Supreme Court. But both sides agreed there was a critical difference between the two: rights were either advanced by a vote of the majority or by a decree of the courts. Take your pick.

I don’t think this distinctio­n stands up, either in principle or in practice. The laws and institutio­ns of a democracy, by definition, are and must be those preferred by the majority. If they are other than those the majority chooses, you do not have a democracy. But since there is no way, in a democracy, to long impose upon the majority what it will not accept, the point is moot. The majority won’t have it.

That goes especially for those fundamenta­l laws a society thinks to place in its constituti­on, to which all other laws must conform. These typically include the sorts of protection­s for individual and minority rights found in our own Charter of Rights, or the American Bill of Rights. The purpose of those measures, it is true, is to protect those rights from majority encroachme­nt. But they exist because the majority thought to enact them.

When people say, then, that “the majority cannot be allowed to vote on minority rights,” I do not know what they mean. How do they suppose minority rights come into being, except by a vote of the majority? I do not mean this in some abstract sense. Rights may indeed exist independen­t of the society that enacts them, as a matter of natural law, or God’s law, or just what’s fit and proper. But they exist here on Earth, as a matter of legal and political reality, because majorities decide they should.

This is a point that seems to elude conservati­ves and liberals. I am enough of a judicial conservati­ve to believe that when the courts rule on a constituti­onal question, they should not substitute their own views for those of the legislatur­es. But I am enough of a judicial liberal to say that the mere act of judicial review is not, in and of itself, judicial activism. Rather, the courts are engaged in comparing one law, passed by the majority, with another, higher law, passed by another, larger majority. So long as their reading of the latter is consistent with the plain sense of the text, no violation of majority rule is implied.

The Fourteenth Amendment, on which this week’s U.S. Supreme Court ruling was based, was passed in 1866 by a concurrent resolution of both the U.S. House of Representa­tives and the Senate. It was subsequent­ly ratified by the legislatur­es of 37 states (the last, Kentucky, in 1976). While I recognize that opinions can differ on this, it seems to me a reasonable reading of the words “No state shall … deny to any person within its jurisdicti­on the equal protection of the laws” is that no state shall deny any person within its jurisdicti­on the equal protection of the laws — including the laws governing marriage. So the Court’s ruling, far from defying majority rule, seems to me to represent it — if not the temporary majority of the moment, then the enduring majority embodied by the constituti­on.

Yes, but … surely you would not put such matters to a direct vote of the people? Perhaps they can be entrusted to judges and elected representa­tives. But a referendum? Opponents like to scare themselves silly thinking up intriguing historical counter-factuals, as in: Would you have let Southern whites vote on rights for blacks in 1964? Well, no, not if there were no provision for such a thing in law. Southern whites could not have voted on whether blacks should have equal rights under the Constituti­on: the Constituti­on already said they did.

As for the Irish, the vote in question was whether to amend their constituti­on, since that is the manner prescribed by the Irish constituti­on for its amendment. But article 40.1 of the same constituti­on provides that “all citizens shall, as human persons, be held equal before the law.” Who ratified that? The majority. So whether the referendum had passed or failed, presumably same-sex marriage would have come to Ireland at some point, and whether it did or not would in either case depend upon the will of the majority. It’s an odd sort of logic that holds up the demonstrat­ed willingnes­s of the majority to vote for minority rights as proof of the dangers of letting majorities vote on minority rights. What if it had gone the other way? It didn’t.

Whatever protection­s you might think to enact against the majority can only be enacted by the majority. It isn’t a matter of whether you’d “let” them vote on it. One way or another, the majority will have its say.

 ?? ALEX WONG/GETTY IMAGES ?? Same-sex marriage supporters rejoice after the U.S Supreme Court ruling on Friday.
ALEX WONG/GETTY IMAGES Same-sex marriage supporters rejoice after the U.S Supreme Court ruling on Friday.
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