Prop. 8: Tyranny of the Majority

It's quite challenging to write a post political piece in a climate where politics has essentially taken all the oxygen in the room. There can be no compromise on an issue that debates the relevance of equal protection under the law.

However one feels about same-gender marriage, the fact is California, through court rulings, politics, and the initiative process has backed itself into a corner where the only outcome can be, as others have articulated, a zero sum game.

The key legal issue debated before the State Supreme Court is whether Prop.8 simply amended the state Constitution or a revision. If the initiative amended the Constitution, then it stands. If the initiative revised the Constitution, it must be approved by a 2/3 majority of the Legislature.

This certainly seems like an issue that could have been ruled on when the court struck down Proposition 22, granting same gender couples the right to marry last year. Whatever the California Supreme Court ultimately decides, there can only be winners and losers, which would ironically include the court.

There are several problems embedded should the court uphold Prop.8. First, it would mean the majority, however slim, becomes the ultimate arbitrator for what is just in the state.

The majority rule argument, or the will of the people, is erroneously portrayed in the public conversation as synonymous for what is right in a democratic society.

Having the numbers on one's side makes them impervious to wrong. Or as law professor Ken Starr argued before the Supreme Court in support of Prop. 8, it is allows for the people to make bad decisions.

With more than seven million votes cast in the November election, the majority consists of a 52%-47% margin. The latest Field poll indicates those in opposition to Prop. 8 hold a slim 48-47 advantage.

Simple majority rule is a binary decision-making process that is unable, and in most cases unwilling, to examine the limits of its own power, which if unchecked can ultimately lead to the tyranny of the majority.

The concept of tyranny of the majority has its roots in Plato's Republic; it is used in reference to democracies and majority rule. The actual term originated with Alexis de Tocqueville; it is a criticism of any scenario in which decisions made by a majority would place its interests above a minority's interest to the point that majority will becomes "tyrannical."

This raises the question: Who gets to decide what's tyrannical? In our form of government that role has been given to the courts. They alone have the authority to call balls and strikes on the ideals that the people have committed themselves.

But the court has already ruled on this matter. Were it not for the mulligan granted to the electorate known as the initiative process, same-gender marriage, as an issue, would be fait accompli.

Therefore, if majority rule were preeminent, would a court ruling that upholds Prop.8 create the unintended consequence of diminishing the role of the state's highest court, making it selectively subordinate to the will of the people?

I say selectively subordinate because of the resources required to place an initiative on the ballot does not allow for universal application. Upholding Prop.8 makes the state Constitution inherently contradictory -- equal protection, except in those cases when the majority objects.

This is a dangerous possibility for any democracy, especially one that holds such a slim majority. But the margin of the majority is irrelevant if the court assumes its role.

The victory margin of Prop.22, which the court overruled last year, was greater than the margin in Prop. 8. But that was back in the days when the California Supreme Court was unquestionably the highest court in the state, secondary to no other voice(s).