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State Supreme Court Judge Robert C. Mulvey, who sits in Ithaca, explained that same-sex marriage is simply not a matter for the courts. Gays may try to persuade their fellow citizens of its merits, Mulvey explained, and "if that day comes, it is within the province of the legislature to so act."
It is indeed, but in suggesting that the courts are powerless to address whatever approach the legislature takes, Mulvey contradicts the landmark ruling of Marbury v. Madison. Speaking of the role of judges with respect to the Constitution, Chief Justice John Marshall wrote in 1803: "It is emphatically the province and duty of the judicial department to say what the law is."
Yet Mulvey is not alone in suggesting that gays, for some reason, should not look to the courts to fulfill their traditional function. During his State of the Union address, President Bush again called for a constitutional amendment to ban same-sex marriage and said that marriage is too sacred to be "redefined by activist judges." Bush joined a growing chorus proclaiming that gays are seeking rights in the wrong arena. Dissenting from the Supreme Court's recent decision striking down laws that criminalize gay sexual intimacy, Justice Antonin Scalia oddly assured us that "I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means."
Scalia's magnanimity comes free of risk: He knows that gays, a relatively small and historically marginalized group, face a tremendous uphill fight in the political arena. Other judges, too, turn a blind eye to this reality. When the Massachusetts Supreme Judicial Court struck down that state's prohibition of same-sex marriage, Justice Robert J. Cordy chided his colleagues for usurping the role of the legislature and added: "There is no reason to believe that legislative processes are inadequate to effectuate legal changes in response to evolving evidence, social values, and views of fairness on the subject of same-sex relationships."
No reason? One wonders what Justice Cordy thought when, the next year, 11 states amended their constitutions to protect the institution of marriage from feared contamination by same-sex couples. Several of those states went further, denying same-sex couples any of the tangible rights and benefits accompanying marriage. Justices Cordy and Scalia ignore the fact that the deck is stacked against certain minority groups. And they, like President Bush, ignore the historical role of the courts in protecting such groups.
In one of the proudest moments in America's jurisprudential history, the famous "footnote four" in the 1938 case of United States v. Carolene Products, the Supreme Court acknowledged that courts should generally accept results arrived at through the democratic process. But, the Court suggested, there are exceptional circumstances when the Court must subject such results to greater scrutiny. One such circumstance, the Court proposed, is when "prejudice against discrete and insular minorities" mars the political process.
Four decades later, legal scholar John Hart Ely wrote a groundbreaking book, Democracy and Distrust, elaborating on the Carolene Products footnote. Ely saw merit in the criticism of aggressive judicial action that thwarts the will of the majority. (Indeed, he was a leading critic of Roe v. Wade.) But Ely argued that the courts fulfill their unique role best when they protect politically powerless groups that systematically suffer discrimination.
Ely noted that, in light of the bigotry that drives many homosexuals into the closet, they are particularly ill-equipped to protect themselves. Accordingly, laws that discriminate against them are "suspicious" and should be upheld only if they serve an important purpose.
Of course, there is room for argument about particular decisions. Was the highest court in Massachusetts correct that the right to equal treatment includes the right to marry a same-sex partner? Reasonable people may disagree. But it is absurd to suggest that courts act outside their traditional role when they make such judgments.
Not so long ago, the role of an independent judiciary in safeguarding against the "tyranny of the majority" was much remarked and appreciated. As the anointed father of the Constitution, James Madison, well understood, majority rule is not the only key democratic principle: A healthy respect for minority rights is also a sine qua non of a viable democracy.
A depressing irony in President Bush's State of the Union address has gone unnoticed. In the very next sentence after calling for an amendment to ban same-sex marriage, Bush observed that "a society is measured by how it treats the weak and vulnerable." He was talking about fetuses. Someone should remind the president that the unborn are not the only members of society who cannot defend themselves at the ballot box. And we all should think twice before amending the Constitution to prevent judges from protecting those who, through no fault of their own, cannot protect themselves.
Alan Hirsch is senior consultant to the UCLA School of Law's Williams Project on Sexual Orientation Law and Public Policy.