Mob rule or oligarchy: I'll take C, none of the above

Last week, over at the World Wide Rant, I got into a bit of a donnybrook over gay marriage. As I have before, I supported it, but with the caveat that it be done the right way — with the acceptance, if not the support, of enough of the people to sustain it and minimze the inevitable backlash that such a fundamental change in society it would bring.

That wasn’t good enough for at least one of the readers there, though — I was accused of evading the issue, of being secretly against it, while using that as an “excuse” to say I was for gay marriage, without having to actually do anything about it. In fact, Rick’s last question was “do you favor mob rule?”

My initial answer was to turn the question right back against Rick — “so, you believe that four of seven judges, unelected and utterly unaccountable for their actions, should have the right to impose their beliefs on not only an entire state of several million people, but by the application of the Full Faith And Credit Clause of the Constitution, the entire nation?” But Rick and Steve bring up a bigger, more important issue: at what point do we curtail democracy and the will of the people in the interest of protecting the minority?

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P. J. O’Rourke, in “Parliament Of Whores,” noted that pure democracies tend to last about as long as it takes 51% of the people to realize that they can screw the other 49% with impunity. Further, pure democracies are inherently unmanageable once they pass a certain point — which is why we are not a pure democracy, but a representative democracy — or, to use a term that has fallen into bad associations, a “democratic republic.”

(These days, it’s a good rule of thumb that any nation that has “Democratic Republic” in its name is most likely neither — it’s almost a “secret handshake” for dictators to recognize each other — another observiation I’ve stolen, I believe, from Mr. O’Rourke.)

Our system seems to be the best devised so far by man — a democracy that has certain rights enshrined in the Constitution that can not simply be changed, altered, suspended, revoked, folded, bent, spindled, or mutilated without major, major effort. It would take an amendment to the Constitution to change these, and the founders were wise enough to make the process very demanding and cumbersome. In fact, it has only been done 17 times in two centuries — and one of them really shouldn’t count, as it merely repealed an earlier one.

So the answer is deceptively simple: we are a democracy, with majority rule, but we have determined certain matters are too valuable to subject to public whim, so they require the supermajority and a deliberately obtuse process to affect.

The real tough question is exactly which matters deserve that level of protection, and how do we determine what they are?

I think that the bar for such matters has dropped since the days of the founding fathers, and that has been a mixed blessing. After all, slavery was actually written into the Constitution, and it lasted almost a century before it was finally banned. Likewise the rights of women to vote.

But should gay marriage be escalated to the point where it is beyond the grasp of a simple majority? Does it need that level of protection, and is it so important to protect with such a mighty shield?

Reluctantly, I have to conclude it does not.

Slavery and the franchise are fundamental issues, simple black and white ones. They represent an absolute denial of rights and freedoms — and as too often neglected, the accompanying responsibilities. There were no alternatives available for slaves and women that let them “work around” these restrictions.

As far as gay couples go, it’s not anywhere near as serious an issue. No, the government will not certify your union for you, declaring its validity for all to see. And no, they will not grant you the rights and benefits accorded to heterosexual couples.

But that isn’t the end. There are ways to secure these rights and benefits without benefit of marriage. Most big companies offer “domestic partner” benefits these days. Medical issues, such as visitation rights and decision-making authority, can be handled through a Durable Power Of Attorney. Inheritance is resolved with a simple will.

No, not all benefits are as easily managed. But a lot more are, and those that aren’t can be covered by “Domestic Union” bills, passed by the individual states — where the authority to govern marriage currently resides.

So, to answer Rick and Steve, yes, I do support gay marriage. And I’m not changing my mind, no matter how much of jerks you are towards me. But I simply don’t give it anywhere near the priority you do, and I don’t put it on the same level as slavery or disenfranchisement.

All I ask is an opportunity to put deeds to words. Put forth a legal measure that legalizes gay marriage, and I’ll argue for it. I’ll support it. I’ll write lenghty pieces in favor of it. I might even demonstrate for it and carry signs and put on bumper stickers for it. (Note to self: look for a “straight, but not narrow”) bumper sticker.) Give me a petition to sign. And let me cast my vote proudly in favor of it.

But don’t expect me to be happy at yet another instance of bare majority of judges deciding that instead of interpreting law, they want to start writing law instead. That’s against both the spirit and letter of our Constitution, and I cannot support it.

Cronkite Says Cut And Run
Truth Is Stranger Than Wonkette Fiction
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