Well, this is welcome news. A Georgia judge struck down the state’s ban on gay marriage. And in doing so, she offered these words of sanity.
Judge Constance C. Russell’s order states: "This Court is well aware that Amendment One enjoyed great public support. However, the test of law is not its popularity. Procedural safeguards such as the single subject rule rarely enjoy popular support. But, ultimately it is those safeguards that preserve our liberties, because they ensure that the actions of government are constrained by the rule of law."
I’m rather amazed, actually. But not naively hopeful. The judge’s wise words will soon be lost in the hysteria almost certain to ensue. Rest assured that the proponents of the amendment will mount another attempt as soon as possible, this time maybe more inline with the procedural guidelines, and the overwhelming majority of Georgians will turn out to vote for it again. They’ll turn out because they won’t get the overarching message in the judges comments. Or at least I have no faith that the majority of the people in the state of my birth will even bother to try get it. But for what it’s worth, let’s repeat the important bit just for effect.
However, the test of law is not its popularity.
In other words, the judge is reiterating a core principle of our entire system of government, and not just the justice system: might does not make right. Just because the majority — even the overwhelming majority — wants something doesn’t mean that’s what should happen, or that what the majority wants is even right. We live in a democracy yes, but it is not yet an absolute democracy.
An absolute democracy, which means unlimited majority rule, is incompatible with capitalism and freedom. This is so because capitalism rests on the principle of individual rights. In an absolute democracy, rights would really have no legitimate meaning because they could always be voted away in the next election. When most people think of democracy, they usually mean a constitutionally limited democracy. The function of a limited democracy is to decide who held political power and how that power is specifically exercised, but what that power is should be strictly defined and limited in the constitution. Individual rights would not be subject to vote.
Ours is a democracy that tempers majority rule and protects the rights of minorities because not everything is up for a majority vote. And there’s a pretty good reason why, if you stop to think about it.
It is easy to see why a republic is more desirable than a democracy. In an absolute democracy, the majority has absolute power over every aspect of everyone’s lives. While this might be fine while your group is in the majority, if the majority sways to the other side you are at the mercy of someone else’s whim. The only way to keep everyone secure from the abuse of power is to limit the amount of power that exists in the first place, through the establishment of a republic. Our founders knew this, and not once does the word “democracy” appear in the Constitution.
As absurd as it may sound, in an absolute democracy if someone were able to convince the majority that the practice of slavery should be revived, and the matter put a vote Americans would be bought and sold as property again. If the majority became convinced that women shouldn’t have the vote, Hillary Clinton and Kay Bailey Hutchison would be on their way back the kitchen. Think the majority could never be convinced of anything so absurd? How many were convinced that the U.S. was attacked by Iraq on 9/11? Hysteria ruled then, and believe you me it will rule now in Georgia as it did when the amendment was passed in the first place. The judge also pointed out that the amendment nullified those voters who oppose same-sex marriage but aren’t entirely opposed to some legal rights and recognition for same-sex couples.
"People who believe marriages between men and women should have a unique and privileged place in our society may also believe that same-sex relationships should have some place — although not marriage," she wrote. "The single-subject rule protects the right of those people to hold both views and reflect both judgments by their vote."
The amendment attempted to do a lot of things: define marriage, prohibit the recognition of other unions between same-sex couples, limit the jurisdiction of the courts in the matter, and prohibit recognition of judgments and proceedings from other states. I don’t know how many Georgians fall into category the judge described, but my guess is that if the proponents of the amendment break it down into one amendment for each item, the majority of Georgians will fall all over themselves to vote for them all. And every single one will pass.