The (in)famous Prop 8, banning same-sex marriage in California, was approved by a democratic majority. This raises the interesting question whether democracy means something more than majority rule. Does democracy mean that a majority can decide whatever it wants? I don’t think so. That would not be a democracy but a tyranny of the majority. Democracy is much more than simple majority rule. (By the way, dictatorships can also have majority approval, but that doesn’t make them democracies).
The decisions of a majority have to take place within a framework of rules. These rules have two functions.
- First, they facilitate the decision making (e.g. rules on free speech, freedom of assembly and association etc.), and therefore they cannot, logically, be violated without undermining the whole system.
- Secondly, these rules limit the kind of decisions that can be taken by the majority. For instance, majorities cannot decide to violate the human rights of a minority. Why? Because these latter rules are basically the same as the former ones. The rules necessary for the successful operation of majority rule are the same, or at least profoundly connected to, the rules granting protection to the minorities. This is called the interdependence of human rights.
If a democratic majority decides to enact laws or policies that violate the human rights of minorities (or individuals, or even majorities), then courts have to step in and enforce the rules of the game. This is not judicial activism by anti-democratic and elitist judges infringing on the democratic rights of the people. It’s judges enforcing democracy, but democracy as something more and better than tyranny of the majority.
We have a clear example of all this in the case of Prop 8 (unfortunately, the courts don’t seem to be playing their constitutional role, yet):
It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution. The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation. Ted Olson (source)
There is some discussion on whether the courts should be playing a role in this. Some gay rights advocates insist that it is better to work on public opinion and hope for a general public approval of same-sex marriage in the decades to come. Of course this is a useful strategy, if perhaps somewhat naive (who knows what would have happened to the civil rights movement had the same strategy been applied then). However, the dismissal of any role for the courts, for example because of the fear of a popular backlash against equal rights enforced by unelected courts, amounts to a profound misunderstanding of democracy.