Gov. Steve Beshear of Kentucky filed a delightful brief with the Supreme Court on March 27 in defense of “traditional marriage” or “natural marriage” or whatever dog-whistle the bigots are using this week to identify the sentiment, “I get to marry whoever I want but I think your love is icky.”
Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.
Well, there you go! True equality under the law! It immediately made me think of that paean to equality from Anatole France,
In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.
It’s easy to see that under Gov Beshear’s ideal system, we’d have no Americans with Disabilities Act; let everyone alike go up the same stairs! No Equal Employment Opportunity Commission; let everyone alike deal with the same racist manager!
By constraining a government built (loosely) on majority rule, the Bill of Rights accomplished what few societies before had managed. It created a public and commercial sphere in which majority and minority populations could coexist and flourish. Congress, as the branch of government most driven by the sentiments of the masses, is constrained time and again from doing everything the Founders could think of that would support the proverbial tyranny of the majority. Indeed, the phrase “tyranny of the majority” is not the exact phrase James Madison used, but he did write, in a letter to Thomas Jefferson about the need for a Bill of Rights added to the Constitution,
“… In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience, it is well known that a religious establishment would have taken place in that State, if the Legislative majority had found as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created. Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
So when I hear the repeated appeals of anti-marriage-equality and anti-anti-discrimination demagogues to “the will of the people”, it is supremely chilling. Because what this means is, they got a bigoted ballot measure to pass a popular vote in someplace like Kentucky. Well, knock me over with a feather.
What this means to me is: marriage equality and anti-discrimination laws are all the more desperately needed in just those places.