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institution in the United States often are framed by its opposition as in conflict with a variety of social, religious, and pseudo-traditional issues. Proponents of state amendments defining marriage as a union between a man and a women argue that if such measures pass, they are simply the hard reality of the nature of democracy and the consent of the governed. Yet Matt Forman, the executive director of the National Gay and Lesbian Task Force, argues that "it is always wrong to put basic rights up for a popular vote, and it is nearly impossible for any minority to protect itself when that happens. Indeed, same-sex marriage advocates would argue that the fundamental democratic principles and theories that contribute to how we define and understand democracy today are largely being abused and ignored. As we shall see, the United States is deficient in its support
for essential democratic morals protecting the rights of the minority against the tyranny of the majority, and consequently of guaranteeing freedom of selfdetermination and natural rights. Marriage provides to couples certain rights and advantages, such as health benefits, that couples outside such a union are not able to enjoy. Although Constitutional and legal protections are not examined in depth in this paper, it is important to first briefly demonstrate that marriage is indeed a civil liberty or freedom under law, and therefore applicable to any democratic theory arguing for equality. The Equal Protection Clause of the 14th Amendment guarantees that no
state shall deny to any person within its jurisdiction the equal protection of the laws , and indeed, courts in three separate states have found that bans on gay marriage violate the constitutional rights of American citizens. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same-sex partner of their choice, Justice Richard N. Palmer wrote for the majority in the decision of the Connecticut Supreme Court (Right to Marry, UMKC). It is evident, then, that those who wish to ban gay marriage wish to apply constitutional protections to gay persons differently then they would to others, and that marriage should be considered a political freedom afforded to all. It is therefore obvious that, in terms of constitutionality, marriage should be open to all. But how is the failure of the American political system to do so not adherent with basic democratic principles and theories? Why can the majority not simply dominate the social values of its minority? The answer lies in John Locke and John Stuart Mill s treatment of democracy as an institution fundamental to the rejection of a natural hierarchical system while ensuring that the rights of the governed must be actionable and honored. In Perry v. Schwarzenegger, a landmark case objecting to the constitutionality of a Californian proposition banning gay marriage, Chief Justice Vaughn Walker found the defendant-intervenors (namely a group called Protectmarriage.com) unable to provide parties that were clearly disenfranchised and/or in some type of moral or cultural danger from same-sex marriage. Yet
though the defendants felt that their social standards, specifically, the status of marriage as an institution between a man and a women, were threatened, John Mill tells us, the principle is, that the sole end for which mankind are warranted in interfering with the liberty of action of any of their number, is self-protection His own good, either physical or moral, is not a sufficient warrant. (Mill, 6). In other
words, self-protection is the only reason for the restriction of rights in a democratic society, and since moral divisions among the population are so common it is near impossible to know when it is legitimate or otherwise appropriate for the government to interfere in the personal liberty of an individual. The government is not infallible and, as shown in the legislation against same-sex marriage, it is often incapable of legislating for the rights of the minority, that is to say, legislating that the sphere of personal liberty of its citizens not be invaded on the grounds that their claiming of legitimate rights harms no other citizens. Further, disagreement between the majority and the minority is natural, but a viewpoint restricting the freedoms of another group must not be brought into law, as doing so would be the legislature of oppression. The tyranny of the majority, antithetical to democracy, as we shall see, manifests not only in the legislation, or lack thereof, of the government but also in the social norms demanded by the public majority. This social tyranny is largely due in part to the natural intolerance of mankind in religious issues. Religious freedom, and the duty of toleration, is admitted with tacit reserves. Wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed. (Mill, 5). The minority, in this case, homosexuals, are
under the duress and necessity of pleading to those whom they could not convert, for permission to differ. Indeed, the petitioning of homosexuals to many religious groups has fallen upon deaf ears. Tolerance and democratic principle in religious matters are disseminated to certain social and religious arenas, Mill informs us, but not all. Charity is extended to those who may believe in God, but not atheists, or to fellow Christians but not Muslims (or vice versa), or in this case, with overwhelming religious undertones, to heterosexuals but not to homosexuals (Mill, 5). Gays, of course, have historically been persecuted for their sexual preferences, and marriage is nearly the last bastion of heterosexual privilege denied to their homosexual counterparts. In addition to religious reasons, perhaps there is a feeling of class superiority that goes along with the denial of the extension of marital rights to homosexuals. The opposition to gay marriage often frame marriage as an institution open only to the majority class. For example, Senator John McCain, referring to civil unions, said, Does it mean that they're able to enter into certain contracts, people have a partnership? I think so. But to give it the status of heterosexual marriage is not something that I would support. (Interview, CNN.com). Mill tells us wherever there is an ascendant class, a large portion of the morality of the country emanates from its class interest and its feelings of class superiority (Mill, 4). We could say, then, that many, although certainly not all, heterosexuals who oppose gay marriage do so on the grounds of a complex of superiority over homosexuals. Morality issues between many class conflicts, such as slaves and freemen and men and women are the result of these class interests and feelings , and these attitudes continue to drive the majority sentiment (Mill, 4).
Now that there is a demonstrable concern in regards to the tyranny of the majority over the gay minority in both a religious and social sense, what role must democracy play in the protection of the minority, and how has it failed thus far? John Locke informs us that men (modernly speaking, all humans) are naturally in a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit without asking leave, or depending upon the will of any other man [emphasis mine] (Locke, 3). This law of nature, possessed by all, is put to the wayside in favor of a nature of hierarchy when heterosexuals express their perceived dominion over homosexuals, namely in the repression of same-sex marriage. This dominion is akin to an act of war: He who attempts to get another man into his absolute power, does thereby put himself into a state of war with him , and consequently such a condition is illegitimate and must be deconstructed by a democratic state that guarantees the fundamental freedoms of its constituents (Locke, 9). The purpose of the democratic commonwealth, then, is not to curb the freedoms of its members, but rather to protect them in as generous a manner as possible (Locke, 32). In other words, the commonwealth must reflect natural law in its actions and by its political institutions. While the judiciary branch can largely be seen as guarding the principles of natural law in its various overturning of gay marriage bans, the legislative and executive branches have largely failed in protecting the gay community s natural rights. As noted, the body politic of the commonwealth has also failed their compatriots in protecting their natural rights, and consequently democracy is undermined.
Same-sex marriage in the United States is constantly damaged and opposed by various governmental and societal institutions and influences. Consequently, basic specific democratic principles are absent from the lives of many Americans affected by the lack of natural rights afforded to the gay community, the legislation of oppressive laws banning gay marriage, the inability of the gay community to protect itself from the tyranny of the majority without sufficient governmental support against a sorts of a hierarchical superiority seized against the community.
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Jacoby, Jeffery. "Democracy and Same-sex Marriage." The Boston Globe. 15 Nov. 2006. Web. 11 Jan. 2011. <http://www.boston.com/news/specials/gay_marriage/articles/2006/11/15/dem ocracy_and_same_sex_marriage/>. "Interview with John McCain." CNN.com. Web. 13 Jan. 2011. <http://transcripts.cnn.com/TRANSCRIPTS/0605/24/lkl.01.html>. Locke, John. "Second Treatise of Civil Government." Oregon State University. Web. 10 Jan. 2011. <http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locke2nda.html>. Mill, John Stuart. On Liberty. New York: Norton, 1975. Print. "The Right to Marry and the Constitution." UMKC School of Law. Web. 12 Jan. 2011. <http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/righttomarry.htm>.