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Patience isn’t such a virtue.

March 9, 2009

Steve Chapman argues in the Chicago Tribune that rather than pursuing court challenges, marriage equality advocates should be trying to change the minds of those who have opposed same sex marriage. Citing the fact that we can gain these rights as quickly as they were taken away with the simple vote, Chapman argues:

The nice thing about the referendum option is that once gay-marriage supporters constitute a majority, they can promptly amend the constitution to their liking—as I hope they do. But it is hard to win voters to your side while telling them they have no legitimate say on the issue.

Like it or not, the California Constitution notes a basic truth in a democratic society: “All political power is inherent in the people.” Advocates of same-sex marriage might do better by treating those people not as opponents to be defeated but as allies to be won.

While I do think that broader public support is the key to the the success of the gay rights movement, and we would undoubtedly be better off treating the public who opposes marriage equality as an audience to be won, I think that saying one should not be pursuing legal options is overly optimistic and harmful to people in need of these protections and rights now.  Yes, Chapman accurately points out that there has been a nine point shift in public support for marriage equality in the last eight years (in CA, I’m assuming), but history shows us that interracial marriage was opposed by a majority of Americans before Loving V. Virginia ruled marriage discrimination on the basis of race illegal.  Shortly after, public support shifted dramatically.

The point that is missed here is that the courts are one of the checks to protect the minority from the tyranny (in California’s case a 50%+ vote to void basic rights) of the majority.  Historically, courts have moved ahead of public opinion in the direction of justice, and to deny that fact reduces the likelihood of equality in the immediate future.

People like to talk about the grand nature of democracy, but they ignore that our republic is built on more than a 50% +1 vote.  Yes, it will be great when a government constructed solely on the idea of 50% +1 is always right, but in the mean time let’s recognize that our country wasn’t built that way for a reason.

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