Discussion regarding Judge Walker’s opinion striking down California’s Proposition 8 predictably butts heads with a far more important issue than same sex marriage; namely, how to determine and protect fundamental individual rights where the majority of a democratic society opposes such rights.
I use “rights” very loosely here and without elaboration. If one wishes to assert that there are no such things as rights in any moral as well as legal sense except insofar as they are agreed upon by some majority or super-majority, I understand but respectfully disagree with that position. That said, I recognize that the burden falls to my side both to justify some non-majoritarian sense of rights and to determine or at least to give the criteria necessary for the determination of such rights. Neither of which I propose to try here and now.
But look. A majority of us, irony intended, would almost certainly agree that there are some natural or non-social-contract or God given or whatever rights irrespective of majority opinion or power. In fact, most of us don’t really believe in majority rule except as the fairly rare exception to the rule. That is, none of us, I hope, believe that if a majority of the persons in a room decide to rob or beat up or kill or rape, etc. the room’s dissenting minority that the majority’s “vote” morally justifies their actions. In fact, we have words for the majority and the minority in such cases that captures the moral onus; namely, mobs and victims. If the mob decides acting collectively is a good thing and continues as such it merely turns into a gang.
And yet in a sense a nation is nothing but a gang writ large. Even the so-called protective function of required super-majorities to, e.g., amend the Constitution doesn’t change the basic problem. If 51% of the population can be morally wrong, so can 67% or 80% or even 99.9%.. I have no idea what the popular vote throughout history would have been at its worse in such matters as condoning slavery, the abuse of women, etc., but I am confident that at some point in time on every such issue it would have been pretty damned high condoning what is now condemned.
And yet, save those who find moral relativism unproblematic, we want to say that if something is “in fact” wrong, its wrongness is at least in some sense independent of time and place, that slavery was not a morally acceptable practice throughout most of history even though it was a widespread practice considered, for example, unproblematic by the ancient Romans.
There are those, I know, who contend that our moral sense is an evolving faculty, but I see little reason to believe – and more than ample evidence to the contrary from the 20th century – that we are in any meaningful sense of the term more moral beings per se than we were a century or longer ago.
What I want to say then, and not in the terminology of the ethicist or epistemologist but of the lawyer, is that the prevailing positive morality of the majority at any given point is in some non-relative sense probative but never dispositive of what is right or wrong. In what sense and to what extent it is probative is yet another question I leave for another time.
As for the far more existentially important question of how to protect the legitimate interests or rights of the individual, assuming such exist, against the potential tyranny of the majority, I not only will not attempt an answer, I will admit I haven’t a clue.