Terrance Heath

Civil Rights Death Watch

Filed By Terrance Heath | March 24, 2009 6:00 PM | comments

Filed in: Living, Marriage Equality, Politics
Tags: California, civil rights, Mexican Americans, NAACP, Prop 8

This has been in the back of my mind for a while now, so I’m just gonna go ahead and say it: If the California Supreme Court upholds proposition 8, it will signify nothing less than the death of civil rights in this country.

Think I’m wrong? Well, which of these folks do you want voting on your civil rights?

It’s something the NAACP and other civil rights groups understand, and why they’ve stood in opposition to the proposition 8 as it’s passed into the hands of the California Supreme Court justices.

Next time you go to a protest, somebody please put these words from a previous post on a protest sign or poster. You have my express permission to use these words over and over and over again on as many signs, flyers, buttons, etc. you want.

You may not be gay, but you may be next.

The NAACP, the Mexican-American Legal Defense Fund, the Asian Pacific American Legal Center and those other civil rights groups probably get that they may not be gay, but if what happened in California on proposition 8 stands, they may be next. You may not be able to fit the next part on a sign, but it's the rest of the argument.

Remember that we used to live in a country where civil rights weren't decided by majority vote. Remember that we used to live in a country whose founding documents cite "inallienable rights." Remember that we're may not be living in that country anymore, and even if your rights were not up for a vote this time around, they are almost certain on someone's hit list.

…If you think for one minute that the people who have been against civil rights from the beginning will stop with same-sex marriage or with gay people, you may be surprised. What they did in California was to establish a beachhead as a basis for overruling almost any established civil right on nothing more than a simple majority vote. In other words, they got a foothold for establishing majoritarianism.

And that mean what, exactly?

What's unsaid and unquestioned in all of the arguments above is the increasing conservative push for majoritarianism. Or, to put it plainly, absolute majority rule. Might, in other words, makes right. The majority is automatically right , no matter what it wants or doesn't, because it's the majority. Only the current crop of Republicans and religious conservatives go a step further than traditional majoritarianism, by seeking to bar a future majority from disagreeing with the (perceived) current majority.

What's scary is that the creeping support for majoritarianism may result in a situation where no one has any “unalienable rights,” that the majority can't take away, because the two avenues minorities have traditionally had to access justice that the majority withholds -- the courts and the legislature-- will have been delegitimized fo that purpose.They'll henceforth exist only for the purpose of enforcing the will of the majority because, as noted above, the majority can't be wrong.

And I’m not the only one concerned that we’re about to enter and age where tyranny of the majority is the new norm.

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.

…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.

As I’ve noted before, the courts have been under attack from the right for quite some time, now, and the progress they’ve made towards disestablishing the courts as route for minorities to seek justice is disturbing.

As an African American and a gay man, I know that the courts played a role in my even being where I am today, because of opportunities I wouldn't have had but for decisions like Brown v. Board of Education; because people had access to the court as a route to obtaining justice when all other roads were firmly blocked. It's unlikely things would have advanced as far as they have if the only option was to wait for the will of the majority to shift. There are people whose lives would be radically different today, and perhaps not for the better, had the majority always been allowed to rule.

What we are on the verge of losing in our judicial system just now--and could just as easily lose down the road if we aren't vigilant--is the principle that might--in the form of numbers, in this case--does not and should not make right. As I've said before, it's the understanding that sometimes the will of the majority may also be the furthest thing from justice, and thus should not be allowed to stand.

We are on the verge of becoming a society where a Brown v. Board of Education could never happen. We are on the verge of becoming a society in which injustice would be allowed to stand because it's believed that's what most people want. We have only now stepped back an just an inch from the ledge. There will be another push, and another, and another in the next few years.

That was back in 2005. Four years later, we’re back on that ledge and possibly even taking a step towards justice being defined by the will — or whim — of the majority.

Supreme Judicial Court Chief Justice Margaret Marshall, the commencement speaker at the Waltham school, expressed concern over recent attacks against the judiciary.

“Our courts function as a pressure valve to defuse political and social tension,” Marshall said. “As a nation, we have tacitly agreed that it is better to settle our large differences in the courtroom than in the street.”

…”I worry when people of influence use vague, loaded terms like ‘judicial activist’ to skew public debate or to intimidate judges,” Marshall said. “I worry when judicial independence is seen as a problem to be solved and not a value to be cherished.”

…”Respect for the rule of law is deeply imbedded in our American experience but it is not embedded in our DNA,” she said. “Each of you must decide whether to embrace, to protect the rule of law, or to repudiate it. Make no mistake, inaction and indifference are acts of repudiation.”

Marshall referred to past U.S. court rulings school desegregation and civil rights as proof that an independent judiciary is vital.

“Individual rights and human dignity are vulnerable when they depend for protection on the will of the majority or the good faith of those in power,” she said.

One more push and, as I’ve said before, we risk losing one of the foundational concepts of our system of governance.

The way I see it, one of the things that a republic, or at least our republic does by design is to preserve democracy and protect the rights of the minority against the tyranny that can result from absolute majority rule. For example, the majority of citizens might decide that it ought to be a crime to criticize the president's policies. They might be strong enough and loud enough in number to get such a law passed. However, the Supreme Court--once a legitimate case winds its way to them through the lower courts--can decide that such a law violates the first amendment. You are once again free to call the president a blockhead without fear of being hauled off to jail and/or fined.

I think one of the great things about the way our system is set up is that it gives those in the minority both a chance to be heard, but also a chance to acquire justice when an injustice has been done, regardless of majority sentiment. On some level, the system recognizes that might does not make right. The majority may be wrong. What the majority wants may be unjust, and thus does not necessarily have to stand. Six million or so Massachusetts citizens can be wrong.

Fortunately, we don't have absolute majority rule in this country. If we did I shudder to think what rights and protections some Americans would still be waiting for the majority to decide to share.

I guess it comes down to a choice between modes of social change; a choice of rapid vs. gradual social change. The Massachusetts Supreme Court did in just a short time what would likely have taken another 20 to 30 years to accomplish, if then. The court that decided Brown v. Board of education did what would have taken several more generations to even start. I suppose it's only natural for a group of people who are suffering discrimination or other injustice to desire a more rapid course to relief; just as natural as it is for those who benefit or derive privilege from the status quo to be reluctant to change it in a way that requires them to give up or share what has been their exclusive privilege thus far.

Of course, the judiciary isn't the only route to achieving justice. It isn't the only means of settling the question. Public education and lobbying efforts can be and are often productive. In my personal and professional life, I've participated in both. Hearts and minds can and do change. Polls have shown that a majority of people who know someone who is gay or lesbian tend to believe that gays and lesbians should not be discriminated against because of their sexual orientation. But it's not the only route to acquiring justice. And it's not any more (or less) legitimate that the judicial route.

The answer from the majority--to those seeking equality, justice, and the like--is always "Wait. Wait until we feel like it." Some of us are still waiting, and balk at being asked to endure injustice for a while longer. Meanwhile we face discrimination without protection. Meanwhile we live without the rights and protections our friends and neighbors enjoy. Meanwhile our families live without the same rights and protections as the family down the street or on the other side of town.

What’s more disturbing is that some progressives are too willing to ceded this ground, and quickly when it comes to issues — reproductive choice and LGBT equality — where doing so might win them a few more votes. Even when they themselves support reproductive choice and equality, the full implications of ceding that ground to our opposition get lost in the narrow focus on a particular issue or particular election,

The AlterNet commenter rues that Roe v. Wade gave social conservatives an issue to exploit, and fears it has empowered them beyond progressives' ability to counter, and suggests it would be better if Roe had never happened even if that meant that many women would continue to die from illegal abortions. The blogger for the Independent Gay Forum fears that the taking the fight for equality to the courts will result in a backlash and that it would have been better not to, even if that means that same-sex couples and their families continue to go without the rights and protections that other families enjoy.

Better to remember your place, keep your head down, and speak softly lest you draw the attention of the bully on the playground -- the majority, that is -- because the biggest and strongest deserve to rule based on nothing more than their might. Perhaps you can curry favor with them over time -- several decades, perhaps -- but until then you will simply have to live with injustice and inequality if that's what the majority deems you worthy of. Oh, you may speak up against it if you dare; write a letter to editor or join a protest. But you may not, you'd better not, take your quest to the halls up justice because they aren't (or soon won't be ) in the business of dispensing that commodity unless it pleases the mob.

Retroject that into the past, and you get a lot of judicial decisions that were important for minorities that probably shouldn't have happened. Of course Roe v. Wade shouldn't have happened, and neither should Loving v. Virginia or Brown v. Board of Education. For that matter, neither should the Civil Rights Act of 1964 or the Voting Rights Act of 1965 for that matter. And it goes without saying that the Lawrence v. Texas decision shouldn't have happened either.

Neither the decisions, nor the social changes the set in motion -- and the justice dispensed to the minorities who approached the courts in seeking it -- should ever have happened. And not just because the courts should no longer be in the business of justice for minority citizens (or women seeking reproductive freedom of choice). Even if it means that more people would have to suffer discrimination, none of it should have happened. Those who benefited from having legal recourse against discrimination shouldn't have benefited, and should have been discriminated against. Those who are alive because of access to safe and legal abortion shouldn't be.

…If the majority wanted discrimination to continue, than people should have been discriminated against. If the majority wanted abortion to remain illegal, than women who sought abortions should have continued to die in back alleys. Because the majority wanted it, and if the majority want it then it must be right.

And it's not just because the majority wanted discrimination at the time, or preferred back alley abortions (though one can assume they did, and that they were right because they were the majority). It's also because if you are a woman or a minority, your rights should not be the same in one state as they are in another. Of course, if you're a member of the majority, chances are you can go anywhere you want without worrying that, say, the legal status of your relationship with your spouse or your children. But if you're a gay family traveling through Oklahoma, if you have an accident and wind up in the emergency room you may find out that you're not a family in Oklahoma. Because you have fewer federally protected rights that you can count on everywhere in America.

And that's as it should be. Because the segregationists were right, the south won the civil war, and because we are (or are becoming) a confederacy after all. It may not be good for minorities, but that makes it good for America.

I’m hopeful the California Supreme Court -- especially after a landmark ruling that not only placed marriage equality squarely in the realm of civil rights, but echoed with all that America has promised to be on paper -- will not put a roadblock on one of the paths towards fulfilling that promise.

But I’m keeping a black armband handy just in case.

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Precisely why we need to have the DIGNITY, RIGHTEOUS ANGER (remember, we ARE "right" here), and ENTITLEMENT to demand federal equality without ANY apologies or timidity.

When something like an OMNIBUS BILL passes I'll advocate tax compliance again, but until then f*ck the I.R.S. All of the Hating Hets and the Gays Who Empower Them by not revolting can pay taxes; any "problem" with that is not my problem.


I've held off commenting on this one while I examined sociocultural impacts and absorbed various takes.

Now, however, I can say that this is incorrect. Indeed, it may be a case of putting the cart before the horse, but it will not be the beginning of the end.

It will merely be a setback.

to use an analogy from my own life, it is similar to saying that had the Civil Rights Act not passed, it would be the end of civil rights.

Or to say had SCOTUS not ruled the way they did, then my existence would not merely be illegal, but civil rights would be dead.

Flat out -- marriage really is not the most important thing facing queer/LGBT folks. It may the most important thing in terms of its emotional impact, but it is certainly not the most important in terms of granting them rights.

Nor is the failure going to be so dramatic that civil rights begin to roll back. The ERA *still* hasn't passed. And the fight for it is still going on, even now, even today.

All it will mean is that we have to fight harder, and we have to fight smarter, and we will win, for in the end, we will win.

We are not victims.

christophe | March 25, 2009 8:34 AM

i agree with your comments 100%, this IS and SHOULD BE a decision for the courts, not mob rule. I applaud your article for what it stands for

Don Sherfick Don Sherfick | March 25, 2009 8:57 AM

The issue of majoritarian rule versus the role of the courts in protecting the claimed rights of those classified (or who classify themselves) as minorities is, of course, a complex and enduring one, likely never capable of a perfect solution unless the human condition can be perfectly duplicated by mathematical equations.

I use the terms “claimed” and “classified” above, but not to demean those who consider themselves treated unfairly or unequally, be it with respect to their race, religion, sexual orientation, gender identity, of any other characteristic seen as putting lines of demarcation between individuals. I use those modifiers because, although in areas such a race there is now a broad enough consensus that treating someone differently because of skin color is simply wrong, and that despite what 51% of the population may desire, the courts can properly apply such legal doctrines as “strict scrutiny” to protect racial minorities from the tyranny of the majority.

But it is also true that such a sufficient consensus does not yet exist, at least not to the same degree, concerning other characteristics, those related to marriage equality issues among them. Exactly what a sufficient consensus is, in terms of numbers/percentage, is elusive, but I submit that there is something inherently discomforting about one vote majorities, be they reflected by 50.00001% of popular votes case, of a 5-4 court panel majority.

All of that is to say that while commendable and useful in social/political/legal discourse; it is an oversimplification to simply state the proposition that courts are there to protect the minority from the tyranny of the majority. The reality, it seems to me, is that as a practical reality, what we call “majority rule” applies in all cases, unless the concept of “rule of law” really means something less than we like to think it does under our constitutional scheme.

If the California Supreme Court upholds Proposition 8, it will almost certainly because a majority of the justices feel that under the terms of the California constitution, the measure is an “amendment” rather than a “revision”. So far as I can tell, not even Attorney General Brown’s brief which seems to go outside of that issue acknowledges that had the California General Assembly passed such a measure by the necessary vote, and then a majority of the electorate agreed, Proposition 8 would be valid under that state’s constitution. To say otherwise would be to say that there are some things so fundamental that they are immune from constitutional amendment. Most of even the most ardent progressive would not give the judiciary a final role in saying what can and cannot be amended in a constitution.

If Californians, by a single vote at the polls, (and after proper vote by their lawmakers) wanted to do so, they would have a perfect right under THEIR constitution to deny equal rights to their fellow citizens who are black or Latino. As a practical matter, that would not end the matter, because under the Supremacy Clause of the U.S. Constitution, the federal courts would quickly and rightly declare such a state amendment invalid UNDER FEDERAL CONSTITUTINAL LAW. In that sense, racial minorities in California (or any other state) can breath easy because there is a “federal backup” available. Not (yet) so regarding the issues as they relate to marriage equality issues.

And to take the matter to an extreme, should 2/3 of each house of Congress pass, and ¾ of the states ratify, an amendment denying blacks equal protection under the laws; it would be constitutional, despite what even a unanimous U.S. Supreme Court would say. Same thing with a Federal Marriage Amendment.

All of the above is to say that unless some radically new theory that, for example, the Declaration of Independence trumps being able to amend the U.S. Constitution, so that judges have the final word on what can or can’t be amended, the rule of law ultimately comes down to a concept that is closer to one of majoratarian consensus than of judicial fiat. I say that as one having the utmost reverence for the role of the judiciary.

The cause of marriage equality is a correct and noble one, despite the relative priority various folks in our community may place upon it. But we are fooling ourselves is somehow we think that judges must be the final arbiters, following some kind of “inherently intuitive” set of principles preserved far out in the cosmos regardless of what the people might do in their constitutions. To set the judiciary up in this manner seems to me to create something akin to the theocracy we progressive rightly reject when it comes to government.

The cause of LGBT equality, be it in marriage or otherwise, will be successful because of some interplay between popular votes, legislative enactments, and judicial decisions, coupled with the achievement of a sufficient consensus that such equality is right and just. Too much adoration of the judiciary at the expense of the other facets is something to be avoided.

bodaciousboi | March 25, 2009 9:40 AM

Your concerns are on point, Mr. Heath. If same gender loving people are going to continue to be treated as second class citizens in america, our next major fight has to be for tax-exempt status. There is no reason for us to be forced to contribute to a system that allows our rights to be taken away, or prevents their enactment in the first place. Let everyone who self-identifies as gay or lesbian be exempt, and let’s see how many conservatives and christian fundamentalists step up and come out.

Thank you for your great article. As a petitioner in the case to overturn Prop 8, to those who
think the CA Supreme Court was trying to decide
which one word would take precedence, 'amendment
or revision,' they do not understand the one word
that will take precedence is 'reelection'. The radical right threatened the CA Supreme Court saying they would organize to recall any judge who did not uphold prop 8, or, when they were up for reelection, would organize to defeat them. They play hardball,while we hold candlelight vigils calling the night before the hearing, the night of justice. Well, we are not expecting justice.
when the CA Supreme Court ruled in favor of marriage for interracial couples, 90% of the public was against it. When the Federal Supreme Court ruled to make marriage between interracial couples legal,over 70% of the public was against it.
It is not OK for a 50% majority plus one, to
deny rights to a minority. If the CA Supreme Court upholds Proposition 8, it affects everyone,
and is very, very dangerous. This is why cities
across the country, in many States, will be holding protests on the Day of the decision.
Please go to www.dayofdecision.org and join
in. There needs to be tens of thousands,hundreds of thousands of us in the streets that
Robin Tyler, petitioner to overturn Prop 8.
[email protected]

Terrance, thanks for sharing your insightful and perspective with us. You hit the nail right on the head should California's Supreme Court validate Proposition 8. It would indeed be the death of civil rights and it's ripple effect would engulf our country, as well.

The sole purpose of our high courts is to prevent a majority from dictating laws that would deny equal protections and rights of any minority or group of citizens. It's their sworn duty to ensure citizens their equal protection under the law, as the State and U.S. Constitutions guarantees to each citizen. Sadly, we need to be concerned their decisions could be based on their personal or religious beliefs. Or even more sickening, the thought of them caving into the mean-spirited, nasty and hypocritical threats by religious right fundies of losing their seats on the bench.

Thanks for the idea of signs with "You may not be gay, but you may be next". I'll have some made up for our Day of Decision Actions in Florida. It's very appropriate considering John Stemberger, the leader who succeeded in getting Florida's gay marriage ban Amendment 2 passed. Stemberger now wants to make it harder and more expensive for heterosexual couples to marry and divorce. His "Strong Marriages Campaign" has a Premarital Preparation bill before the Florida Legislature. It would add $100 to the state's marriage-license fee. Requiring attending eight hours of premarital counseling to get their money back. So, now heterosexual couples are in his crosshairs.

R. Zeke Fread
Florida Coordinator/Organizer for National Day Of Decision
[email protected]

This is a great response, if you think about it, to the gun nuts out there who say that we have rights because people have guns. No, we have rights because we live in a country founded on the principle that no one's rights can be taken away. We haven't always lived up to that, but we're working on it.