“The people are sovereign — and can do unwise things.”So says the Hon. Kenneth W. Starr, appointed judge to the U.S. Court of Appeals for D.C. by President Ronald Reagan, and U.S. Solicitor General by President George H.W. Bush. And that statement—the people are sovereign—and can do unwise things—is his argument for, not against, proposition 8 in California.
This is Kenneth Starr’s argument on behalf of the people’s decision to amend the California constitution to deprive their gay fellow citizens of the right to marry: The people are sovereign—and can do unwise things.
Mr. Starr made the observation at yesterday’s proposition 8 hearings before the California Supreme Court, as the court deliberates about how to respond to the majority vote for prop 8 in the last election cycle. According to John Schwartz and Jesse McKinley writing in today’s New York Times (here), as he made the preceding scintillating observation, Mr. Starr also noted that, when the majority seeks to amend a constitution, even to the extent of removing rights from a minority group, fairness is not the primary consideration to be discussed. What is primary is the sovereign right of the people to do as they please—even when unwise.
These are fascinating telltale admissions on Mr. Starr’s part—almost as fascinating as the admission of the chief architect of the military don’t ask, don’t tell ban Charles Moskos that the fundamental principle underlying the ban on openly gay service people is the moral right of people to exclude gay citizens from association with them (here).
What’s interesting about both arguments—the moral right of the majority to exclude minorities it dislikes, the sovereign right of the people to engage in unwise and unfair behavior that even obliterates the stipulations of a constitution—is how much they give away. How much they give away about the shaky, noisome, actively immoral foundations of the right’s crusade to stigmatize and marginalize gay human beings.
Mr. Starr’s statement—The people are unwise, and can do unwise things—is a tacit admission of the indefensibleness of the decision he is asking the California Supreme Court to uphold. This (along with Mr. Starr’s proposal that the fairness of an initiative to remove constitutional rights from some citizens) is a tacit admission that, at some point down the road, historians and people of sound conscience will almost certainly judge the cause for which Mr. Starr is fighting as unjust, cruel, unwise—one in a long line of decisions driven by majority vote or popular consensus, that we now recognize as aberrations from our ideals. As betrayals of all that we stand for as a people . . . .
Like the highly popular decision to seize the property of Japanese Americans in California during World War II, and to shut up these American citizens in camps—some of them across the country from their homes. Or like the equally popular decision to deny a white man and a black woman, or a black woman and a white man, the right to marry.
Mr. Starr admits that he is arguing for what is not fair, and for what is not wise. And so what happens when the California Supreme Court accepts his arguments and the opinion of the majority, as the court now seems poised to do? The court opens the door for future decisions in which an unwise and unfair majority may choose to exercise its sovereign right to strip a minority of rights.
The court also effectively voids what is the central, determinative assertion of its state constitution and of our federal constitution: this is that, by virtue of our creation at the hands of the same Creator, we all have certain inalienable rights, which include life, liberty, and the pursuit of happiness. When a supreme court decides that a majority has a sovereign right to remove “secondary” rights such as marriage from a minority group, it dissolves the social “glue” that holds us together in our constitutional social contracts by failing to uphold the non-secondary and absolutely indispensable rights of life, liberty, and the pursuit of happiness.
What the California Supreme Court will do as well, if it upholds the sovereign right of its people to invalidate core principles of its constitution, is to enshrine in the state’s constitution what are essentially the peculiar religious and ethical views of a minority of citizens of the religious right. The majority vote in favor of proposition 8 was a bare majority, one that required the ceaseless activity and countless dollars of religious-right special interest groups to accomplish its goal.
In upholding this majority vote, the California Supreme Court will be upholding what ought not to be upheld in our political process: this is the intent of a minority group driven by religious ideas not shared by the majority and antithetical to the democratic principles of our society, to hold all citizens hostage to their particular religious and moral views. In allowing that minority to rule through the vote of a bare majority on behalf of proposition 8, the California Supreme Court will abdicate its responsibility to safeguard the core principles of the state’s constitution against the tyrannical behavior of a group of citizens, and will set a dangerous precedent for other future attacks on the constitution by theocratic fanatics.
