Some rights go beyond democratic preferenceRadio personality and political commentator Mitch Henck says we should let the states decide on the issue of marriage equality through a vote of the people.
OK then. Let’s presume that’s the best method. Let’s allow the states to decide same-sex marriage.
For that matter, let’s let the states decide on the issue of interracial marriage. Loving v. Virginia determined in the 1960s that bans on those marriages were unconstitutional. But it must have left people feeling uneasy after a “few judges” decided that, right? So let’s undo that decision.
For that matter, let’s undo Griswold v. Connecticut, which allowed women the right to contraception. Surely some religious groups had gripes with that decision as well.
And Brown v. Board of Education was a Court-decided case also. That one REALLY had people upset. But should that decision instead be left to a vote?
I think my point is clear here: some issues simply require an esteemed decision from the Supreme Court rather than a democratic vote. Democracy should not be two wolves and one sheep deciding what’s for dinner -- there are occasions when democratic preferences need to yield to fundamental rights.
Marriage equality is one such issue. Gay and lesbian couples deserve the same protections and recognitions for their unions that straight couples receive. The difference between so-called “traditional” marriages and same-sex marriages is negligible, especially when you realize marriage is a contract between two consenting adults.
Within that contract, certain privileges are bestowed upon a couple with regard to property, inheritance, taxation, and child custody, among a myriad of many other rights. In all there are more than 1,100 federal privileges granted to couples in legal marriages at the federal level, and more privileges at the state levels, too. Those privileges are unfairly denied to same-sex couples.
And Mitch Henck wants to leave it to a vote whether that changes?
Democracy is a powerful tool that can be -- and should be -- used to allow the people to determine the direction their governments take. But it shouldn’t be the only aspect of what makes society grow. Recognition of fundamental rights has long been an evolving process, and one that typically requires intervention from the courts to move forward.
Henck’s conclusion, that we ought to allow states the right to deny privileges if they deem it proper, ignores that concept. He’s right to say that a democratic vote would make people happier, even the losers who would have to accept that they are now in the minority.
But fundamental rights shouldn’t be determined by a simple majority. The prevention of rights requires more, a justification that can pass a test that deems the exercise of such rights a harm to society or to people in some possible way.
Marriage equality presents no such harm. The Supreme Court should declare it a protected right, and Mitch Henck should understand that democratic preference of the states should not overrule the freedoms these people are seeking.