Proposition 8: are the US still a democracy?

And you thought you had voted.....

I generally do not indulge in such rhetorical questions, but this time the question doesn’t appear very rhetorical.
For you non-Americans, the story in very short format. In 2000, the citizens of California vote in a referendum a proposition (“Proposition 22”) to ban homosexual so-called marriages. In 2008, the California Supreme Court strikes down the referendum decision because “unconstitutional”, that is: the court decides that the people are naughty and therefore their will doesn’t count.

The citizens of California then proceed to held a second referendum on Election Day 2008 to have homo-marriages banned (“Proposition 8”) and give it a majority for the second time; this time the approved proposal is that the ban be inserted in the Californian Constitution so that the judges of the California Supreme Court will not be able to play God or to decide that they are naughty and therefore their will doesn’t count, again.

With the California Supreme Court now out of the game a single man, a judge of the Federal District Court called Vaughn Walker, has decided once again that the citizens of California are naughty and so their will doesn’t count. This will now go to the appeal court (the notorious 9th circuit, secular and liberal as they come and therefore largely expected to upheld the ruling) and then to the Supreme Court. In his gracious omnipotence, the judge has apparently decided that the ruling be suspended pending appeal.

I will write in a different entry about the sentence in itself; details are starting to get through and the sentence seems to me an astonishing show of idiocy and ideological blindness, but this is for another day.

What I am thinking now is: what is happening to the American democracy? Do the American citizen really think that the sovereignty should ultimately rest by the judges?

I do not even want to begin the discussion whether a ban of homo marriages be “moral” or not. Of course it is, but it is not about that. It is about the fact that the people have chosen, and they have even chosen twice. We have here a situation where the electorate continues to decide in one sense and the courts continue to decide that they are wrong. To me, this is courtocracy battling against democracy.

This is sheer madness. It is as if there was a sort of Ayatollah of Political Correctness deciding that every piece of legislation must comply with the Supreme Mantra or be struck down. But the fact is: this is NOT democratic thinking. Democratic thinking is to accept that once a decision has been democratically achieved, this decision is respected as long as the voters do not take (in whatever form, through a referendum or through their democratically elected representatives) a new decision.

Take Italy. Once a Referendum has led to a decision a new referendum on the matter is forbidden for five years and never has the Corte Costituzionale dared to question a democratically formed decision. In a democracy, you just don’t walk over the electorate like that and when the people have spoken, no judge can interfere about the fundamental “morality” of the decision.

Here we have the absurd situation that several million people have voted for a very clear question involving fundamental moral principles and a single judge decides that the will of these several million people should just not be considered. One man! This is not a democracy anymore, this is dictatorship of the courts. The fact that further rulings are now expected does not change an iota in the fundamental matter that it will still be judges deciding whether the will of the people applies or not. Also the fact that the decision is suspended pending appeal does not change that it was the judge himself deciding so. Madness.

If the people of California are not free to even decide about the most basic ethical and religious principle of life in common anymore; if even fundamental expressions of the people’s will must be “cleared” by a judge after the vote; if several millions decide in one sense, but one man can decide that they were not entitled to do it, where has democracy gone?

I say it once again: in a country like Italy (with a fairly recent experience of dictatorship and therefore a high degree of sensitivity towards “expropriations” of this power through other powers of the State) there wouldn’t be such discussions in the first place. A referendum must be approved beforehand by the Corte Costituzionale to make sure that it is in harmony with the fundamental principles of the Italian constitutional system (say: you can’t have a referendum to abolish democracy, because democracy is a constitutionally protected principle) but once the referendum has been held the people have spoken and that’s that. Also unthinkable is the concept that the Court may feel authorised to decide about the morality of the decision. This is not for them to decide, but for the people themselves.

If someone (perhaps: American?) can give more colour, I am grateful. As it is now, the entire system appears bonkers to me.


Posted on August 5, 2010, in Catholicism and tagged , , , , , , , , , . Bookmark the permalink. 11 Comments.

  1. I think the issue here might be giving the majority a vote over the rights of a minority. I think we’ve always been against that. If women’s rights or civil rights had been determined by a popular vote, the U.S. might still be a country in which only white men have a say in the laws of the land. The fact is that the LGBT community is an oppressed minority, and I don’t think that having one man stand up for their rights counts as a “dictatorship.” There’s also the question of how the campaign was run, and whether the slim majority that voted for Prop. 8 did so on the basis of lies. But that’s another issue. Personally I don’t think this is the kind of thing that should’ve been put to a vote in the first place.

    • Maisha,
      your fact is – I am afraid – not a fact, merely an opinion.

      In a democracy, what is “oppression” and what is “morality” is for the majority to decide, not for the minority feeling “oppressed”.
      Everyone can feel “oppressed” everytime he doesn’t like something, this is a game everyone can play.

      I also do not see the argument in the fact that a man would “stand up for their rights”. The problem here is that it is not his job to do so. If a man invalids the decision of millions, he is trampling over their rights and trampling over democracy, the rest is a subjective feeling. The question whether there is a right in the first place has been democratically decided, twice.

      The other argument is beside my point so I won’t go there.


  2. You’re right, that’s not his job to do. His job is to uphold the constitution, which is the law of the land, and if he finds something “unconstitutional,” then it’s his job to correct it. Perhaps I misspoke in saying that he’s standing up for their rights, but in effect that’s what he’s doing, by standing by their right to be protected by the constitution, rather than having their rights taken away because a majority voted on it.

    It scares me to think that what is “oppression” and “morality” would be determined by the majority. You must be speaking from a place of privilege to see things that way. For someone who is being oppressed, whose rights are trampled on every day by the people who are privileged, it’s terrifying to think that just because that privileged majority doesn’t understand how they’re being the oppressor (which is difficult to comprehend when you’re in that position, and you don’t have to deal with the daily subtle and overt differences between being in a place of privilege and being oppressed), they can call things “moral” and deny that the oppression is taking place and have that accepted as the truth. If the majority identifies as a certain type of Christian and says that only their way is moral, then I guess all non-believers are supposed to accept that? That idea scares me, and I believe it violates the constitution.

    • So you seem to have two arguments:
      1) the judge found the decision unconstitutional.
      2) “morality” cannot be determined by the majority.

      1) I find this position absurd for the simple reason that the decision was one, as you say, about morality. Morality is not something a judge can (I mean: should, in an efficient democracy) decide for me. He cannot say that I must henceforth find incest, or paedophilia, or homosexuality, or bestiality all right. It being a moral decision, it is obvious that the decision about the morals of the country should be left to…. the country. It’s called democracy. Works better than civil wars.

      2) One can obviously say that the morality cannot be determined by the majority, and this in itself true. But this is just not democratic thinking. This is what people say in China, or Cuba, or North Korea. They will shape the people to let them become as they want them to become. It can work just fine (look at North Korea!) but is just not democratic!
      If I were to tell you that I find it scaring that “morality” is decided by the majority and that therefore from now on Catholicism must be the Official Religion, hereticals burned at the stake, homosexuals hanged, drawn and quartered, divorce and abortion banned to give voice to the oppressed Christianity I do not think you’d be very pleased. Mind, I could say it with the same right as you do, but it just woudn’t be democratic, nor would I pretend that it is.

      Your “privilege” argument is no argument. “Privilege” has no bearing on truth, or on right. If something be right, it will be right whether you are (or fell) trampled or not. If something be wrong, it will be wrong whether you are (or feel) trampled, or not. Conversely, being (or feeling) trampled does not make a wrong become right.


      “If the majority identifies as a certain type of Christian and says that only their way is moral, then I guess all non-believers are supposed to accept that? That idea scares me, and I believe it violates the constitution”.

      In the country where I live, the majority accepts abortion, divorce, homosexuality, and a lot more. This terrifies me.
      Do I have to accept it? Yes.
      Why? Because it’s the will of the people. It’s called democracy. If I can accept it, so can you.
      Democracy is not there just to give us what we like, but to make us accept the legality of what we don’t.


  3. Anyway this could go on for days so I’m probably going to stop and respectfully agree to disagree, but I just wanted to say the point that the judge wasn’t ruling on the morality of gay marriage. He was determining whether or not Prop 8 was constitutional, and if you read the entire ruling, he has some pretty good points as to how it isn’t. So if you’re confused about how he can overrule a majority to reach this conclusion, that’s how.

    • Thanks maisha,
      I’ll try to read tomorrow about the ruling itself, what I have glimpsed today was just terrifying (that is: that it is “private morals” and can therefore be struck down) but tomorrow I’ll get more clues. I’ll write about that for sure.


  4. Whoops, I didn’t see your comment before my previous one. Still, I’ll agree to disagree.

  5. Who was responsible for calling a referendum in the first place? Seems rather a waste of time and money if the result counted for nothing in the end!

    • I think it was like in Italy: signature, preliminary exam through court to decide about legitimacy, vote.

      But of course the result counted, it is the courts which have to be told to respect it! 😉

  6. Clearly, the citizens of America need to learn to obey promptly the diktats of their Robed Masters.

    Maisha is a little confused: moral principles are absolute, not relative; they are not decided by counting heads or invented. The question of ‘minority rights’ is a red herring.

    She should remember that in the ‘Dred Scott’ case her precious Supreme Court decided that a negro was only three fifths of a human being (if memory serves me correctly.)

    Sound moral principles are not derived from fickle voters or the whims of judges.

    That’s why we had to have recourse to the Natural Law tradition handed down to us from Aquinas in order to prosecute the Nazis. After all, they were obeying the laws enacted by a democratically elected government with the approval of the judiciary.

    Modern ‘Positive Law’, which now characterises Western jurisprudence, could not have been used against the Nazis.

    Justice, liberty and moral sanity can only prevail in a society which is based on the Natural Law tradition, as this wretched judge’s decision makes as plain as a bench.

    Someone once likened the USA to a ‘nation of Indians ruled by Swedes’.

    I doubt the US public will find the legal smörgåsbord unleashed by this judge to its taste.

    • Beautifully put, Omvendt.
      I also think that this is one of those battles which might end up opening the eyes of the American people as to what they want. I have the impression that the second victory was in part motivated by people not wanting to have their own decision struck down by a bunch of patronising liberals, this last decision will, if anything, reinforce this feeling.

      But I do think (as I have said in my other answer to you) that you leave the decision in peace the judge didn’t even need to accept the concept of natural law ( rather unpleasant to him for obvious reasons), but just to have a fundamental respect of democracy.

      Maisha’s argument, which can be resumed in “we must have our way because we are oppressed” (begs the question) and “morality cannot be determined by the majority” (but like it or not that’s how democracy works) were non-arguments basically hiding the main point, “I want to have my way no matter how”.

      This will take years still and if it wins in the Supreme Court (where I believe the lesbian activist picked by Obama has won her senate vote today) there will be no end to the mess. I can’t imagine Christian groups remaining silent on that, now or in 30 or in 100 years’ time.

      With the mid-term elections looming, someone here might be doing oneself some harm.


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