Saturday, August 2, 2014

Like Oil & Water: Civil Rights and Majority Rule

A good friend posted an article about the recent 4th Circuit Federal Court of Appeals ruling that Virginia's ban on same sex marriage is unconstitutional. Our home state of North Carolina is also in the Fourth Circuit's jurisdiction and our State Attorney General, Roy Cooper, has announced that his office will no longer oppose challenges to North Carolina's constitutional amendment making same sex marriage illegal. Cooper believes that it's unlikely that NC's anti-gay marriage amendment will survive the court's scrutiny either. 

One of the commenter's on my friend's post was a guy named Jimmy, another North Carolinian, who wrote in reference to North Carolina's constitutional amendment banning same sex marriage: 
"you know I voted against the admendment.....but have a huge problem with the courts overturning will of the people. I took a lot of heat for my stand then and willing to take it now. But hey....sorry the courts are never right for things like this....never...we the people and all that..." (sic) 
And more from Jimmy:
"love the fact when any of the three so plainly violate it as the executive branch seems to do daily...thank God for the courts...I have a hard time when the courts are reviewing state constitutional issues.."
In NC, the proposed amendment was put to a vote of the people and the majority of the 14% who voted in the election, voted to enshrine discrimination based on sexual orientation in our state constitution.

Jimmy, here's the deal. There is no such thing as the majority rules in the U.S. Constitution. To the contrary, the people don't get to decide who has rights and who doesn't. The Constitution is chock full of provisions that make it clear that no group gets to determine whether some people may be discriminated against because a numerical majority voted to do so.

The people voted to amend our state constitution in an effort to legalize discrimination against people who are not heterosexual. That's a violation of the U.S. Constitution and our state constitution. 

If we had allowed the people to decide there's a good chance that women still wouldn't have the right to vote and that my people would still be working for no pay in tobacco and cotton fields across the South.

The Constitution, which you insist you love so much, has this thing called the 14th amendment, adopted as one of the Reconstruction amendments in 1868. The Southern states balked at ratifying it and only did so because it was the only way for them to regain representation in Congress, with them being treasonous traitors and all. My favorite part is Section 1 which is known as the Equal Protection Clause: 
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Every state, including NC, that has passed an anti-gay law or amended its constitution to prohibit gay marriage is in violation of that Constitution that you profess to hold so dear. If the Virginia court had decided differently I would have been disappointed, angry as hell and frustrated, but not because I just didn't like the decision but because the court would have failed to uphold the Constitution's guarantee of equal protection under the law for us all. There's nothing equal about denying rights to some that we confer on others freely. 

Civil rights and equal protection of the law are not arbitrary perks to be conferred or taken away from anyone based on the will of the majority. It is the job of the judicial system, under the authority of the Constitution, to determine when the people have overstepped our bounds and to say, "Enough!"

Jimmy, you also may want to read up a bit more on judicial review. It has its origins in English common law but in the U.S., legal scholars point to Marbury v. Madison, 5 U.S. 137 (1803) as establishing the standards of judicial review in the U.S. legal system. The authority of the courts to evaluate state law and federal law is generally attributed to Article III of the U.S. Constitution. There really isn't any legal basis for your feelings: "..I have a hard time when the courts are reviewing state constitutional issues."

Oh and it helps when you're declaring that there are violations of the Constitution by the current administration to name the Article or Amendment or whatever provision you believe to have been violated. A blanket accusation of someone violating the Constitution really is quite meaningless as it has no context. So what part of the Constitution has the Executive branch violated?


The Edge Columns said...

Nicely done.

Capt. Fogg said...

"So what part of the Constitution has the Executive branch violated?"

Um, the part where he's black, he's a Democrat and he's the president? Really, it's just part of the "accuse them of everything we did" policy that's been in place since Nixon left office without the tar and feathers he deserved.

But thanks for pointing out what the neo-confederates need to be hit over the head with daily: that the constitution exists to limit the will of the majority in order to protect the "inalienable rights" we are endowed with. The unrestrained will of the majority is simply tyranny.

Jono said...

Succinctly and clearly stated so that maybe even Jimmy can understand it. Thanks!