Saturday, July 19, 2014

Oklahoma's Same Sex Marriage Ban Overturned: Learning American Civics the Hard Way

by Nomad

When federal judges overturned the same-sex marriage ban in Oklahoma, the state's governor was fighting mad. She claimed that the judges had "trampled" on states rights. Perhaps Fallin needs to remember this isn't Russia.
The American system isn't based on mob rule.

After a federal appeals courts- in keeping with a nationwide trend- ruled that Oklahoma's ban on same-sex marriage was a violation of the Constitution, Republican politicians in the state were predictably outraged. AP reports:
The decision by a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver upholding a federal judge's ruling is the latest in a decade-long legal battle. That fight was launched by two couples - Sharon Baldwin and Mary Bishop, and Gay Phillips and Susan Barton - shortly after 76 percent of Oklahoma voters backed the ban in 2004.
What is interesting - and somewhat depressing- was the response by conservative leaders to the news. The courts, they claimed, had overstepped its bounds. They believe that It should be up to the populations of the states to decide, not activist judges.  
The article quotes the governor of Oklahoma, the quite contrary Mary Fallin:
"Today's ruling is another instance of federal courts ignoring the will of the people and trampling on the right of states to govern themselves..In this case, two judges have acted to overturn a law supported by Oklahomans."
In typical rabble-rousing fashion, she told reporters that the decision would hopefully be overturned. That seems quite unlikely given the Supreme Court's' decision on this subject. Fallin pledged to "fight back against our federal government when it seeks to ignore or change laws written and supported by Oklahomans."

Those are provocative words, especially in a state that has already seen what happens when people "fight back against the federal government." They blow up federal office buildings and kill innocent victims including pre-school children.
It was an extremely insensitive and irresponsible thing for a governor to say when politics are already so heated.

In any case, it isn't just the federal government that people like Fallin want to take duke it out with. 
They want to overturn over nearly two hundred and fifty years of constitutional law. They literally want to outlaw the principles of the founding fathers.   

The Dangers of Mob Rule
The will of the majority is - and always has been- subject to limits with respect to the legitimate rights of the minorities.
(Interestingly Vladimir Putin and his supporters have used exactly the same excuses to suppress their own gay minorities. Always attempting to intellectualize wrong-headed ideas, Putin's brain trust call suppressing minority rights just a different form of democracy.)

Modern Europe has seen what happens when the majority is allow free reign. Even before the devastation that followed the rise of Fascism, there were more than enough warnings. Very early on, it was clear: majority rule had to be tempered with and balanced by respect for rights of the minority.  

The French political thinker and historian, Alexis de Tocqueville in his 1835 work, Democracy in America, warned the prejudices of an individual can be magnified in a larger group. The abusive of power can be more extreme.
"If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach?
It was a common theme for social critics of the age. In instance after instance, they had noticed where the mob rule could lead a country.

British philosopher, economist, moral and political theorist, John Stuart Mill (1806-1873) in his book "On Liberty" devotes a chapter to this weakness of democracy. He said: 
Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively over the separate individuals who compose it — its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries.
Society or the so-called "will of the people", he wrote, can issue mandates- like Oklahoma's ban on same-sex marriage. However, like persons, the will of the people can make wrong decisions too. 

Mill said that when the majority issues wrong mandates ( or as he says "any mandates at all in things with which it ought not to meddle") what can result is a kind of  "a social tyranny more formidable than many kinds of political oppression." 
While the penalties may not be extreme, the result of majority rule tyranny leaves "fewer means of escape" and "intrudes more deeply into the lives of minorities, and enslaves the soul itself."

For this reason, Mill said, there must be adequate safeguards in place. There must be protections  "against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose... its own ideas and practices as rules of conduct on those who dissent from them." 

He writes:
There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism.
Obviously, Govenor Fallin and the others in the Oklahoma legislature have never heard of (much less read) either of these two great minds.

Madison's Great Fear
Our 4th President, Father of the Constitution and architect of the Bill of Rights James Madison  understood the potential for trouble that a full democracy carries with it. 
Indeed, he wrote of his fears to Thomas Jefferson in France from the Continental Congress on October 24, 1787.  
He writes:
A constitutional negative on the laws of the States seems equally necessary to secure individuals agst. encroachments on their rights. The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most steadfast friends of Republicanism.
The problem arose when "a majority... united by a common interest or a passion" could not be constrained from oppressing anybody with a different opinion or unapproved status. Critically, this fear focused on the possibility that one religious group that holds a majority would attempt to subjugate the rights of all other groups, or all other religions.

Madison predicted, "If [one] sect form a majority and have the power, other sects will be sure to be depressed." But not just other religion, but also targeted minorities. The rights of minority gay citizens were equally vulnerable. 

As one source points out, Madison's apprehension came from America's colonial experience where the power of religion and state were one.
(Prior to arriving as a new delegate in New York, in the Virginia House of Delegates, he had succeeded in disestablishing the Anglican Church from its role as the official religion and defeated a bill that would have supported it with a tax on all Virginia citizens.)
While shaping the principles of the Constitution and the bill of Rights, Madison aimed at balancing the "concern for protection of the rights of minorities, as well as opportunity for expression of the majority will." 

Again, Madison expressed this thought in The Federalist Papers" in which he wrote “the great danger in republics is that the majority will not respect the rights of minority.”

Later Thomas Jefferson said in his Inaugural address:
“All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.”
Despite his skepticism of Christianity, Jefferson's ideas have, in fact, their own basis in the Christian thought. The Golden Rule  found in Matthew and Luke, sanctions us to "Do unto others as you would have them do unto you." 

This fundamental principle of the American government (and Christianity) is what Oklahoma legislators have, in their  ignorance, have dismissed. 

The good news is that emigration to Russia is always a viable option for very disgruntled Oklahomans.

The Bullies Claim Victimhood Again
What is most interesting is that Fallin, if she is in any way qualified to be in politics, should already be aware of this.  (That is, if she is simply not trying to deceive the Oklahoma voters.) 

Her understanding of how the American system works is based on profound lack of knowledge of American politics. It is fascinating to note that the Encyclopedia Britannica in its definition of the word "democracy" uses the same phrases that Fallin used in her rhetoric.
The fear of “majority tyranny” was a common theme in the 17th century and later, even among those who were sympathetic to democracy. Given the opportunity, it was argued, a majority would surely trample on the fundamental rights of minorities.
Amusingly Governor Fallin as used the word "trample"  but not about the rights of minorities, but the rights of states
As if states had more rights than citizens! 

That preposterous interpretation of states rights was once commonly used to support other minority suppression policies like segregation and Jim Crow laws. Like today, federal judges determined the white majority population could not dictate - by whatever percentage- the rights of the minority black American. Like the ruling in Oklahoma, some people back in the 60s were equally outraged.

Fallin was joined her rant against the American system by State Rep. Sally Kern, a woman who is well-known for her anti-gay positions. She once claimed that homosexuality was a greater threat than terrorism and claimed without any support that:
Studies show that no society that has totally embraced homosexuality has lasted more than, you know, a few decades.
Kern famously said that America is "becoming so open-minded that our brains are falling out." (These remarks are what passes for political astuteness in the Sooner state.)

In reaction to the news, Kern issued this statement:
"It's time that we the people begin to stand up for morality and God's standards ..If our governor would be bold and take a stand for the 76 percent of the people in Oklahoma who voted ... I think she would be a hero and I think she would set the stage for other states to say: 'You know what? We're not going to let these judges bully us around.'"
This kind of "boldness" is exactly the problem that Madison worried about. Seventy-five percent of the people- nor 99% of the people- do not have the unlimited mandate to steal the rights of the remaining percentage.  

Kern conveniently seems to ignore the fact that it is not the judges who were doing the bullying but the conservatives Republicans and Christian zealots.
In opposition to the Constitution, they were attempting to impose their own religious values- and values not every Christian may agree with- on all taxpaying Oklahomans, both gay and straight. 
And when federal judges corrected the Oklahoma lawmakers' overreach, they claimed the mantle of victimhood. 

Still worse, Fallin and Kern have , in effect told angry Oklahomans that they didn't need to respect the federal government, the court system or the Constitution. It is the worst kind of politics on full display. 
Conservative legislators are receiving their education in American civics the hard way, it seems. 
Meanwhile, bans are continue to be overturned with same-sex marriage now legal in 19 states and the District of Columbia. 

For people who mistakenly think government policy must be dictated solely by majority rule, there's still more bad news for them. Recent polls show a majority of Americans support gay marriage. (Not that that changes the Constitution or anything.)

As wise Mark Twain said:
“Whenever you find yourself on the side of the majority, it is time to pause and reflect.”
That's pretty good -but probably wasted- advice for Fallin, Kern and all of the other Oklahoman legislators who backed the same-sex marriage ban. Rabble-rousing is so much more fun than considered and respectful politics.