Guest column: Constitutional rights should not be subject to the whims of the voters

The slow march to equality led to a landmark court ruling in Idaho this week, writes David Adler.

Chief Magistrate Judge Candy W. Dale’s cogent, eloquent opinion striking down Idaho’s ban on same-sex marriage, framed in terms of fundamental importance to constitutional government, which is the nature of landmark cases, raised the very question that inspired James Madison to introduce the Bill of Rights: May “the will of the majority … trump the rights of a minority”? Judge Dale’s answer, like Madison’s, was “no.”

Dale rightly held that “marriage is a fundamental right of all of citizens, which neither tradition nor the majority can deny.” In reasoning that reflects the opinions of 10 other federal courts throughout America that have struck down state prohibitions on same-sex marriage, Dale stated that Idaho’s marriage laws violate both the due process and equal protection guarantees of the 14th Amendment. In sum, they cannot “withstand any applicable form of constitutional scrutiny”- neither the rational basis nor heightened scrutiny tests.

The court’s rejection of the state’s arguments that same-sex marriage would injure opposite-sex marriages, or the well-being of children, shredded rational basis claims and led to the conclusion that Idaho’s marriage laws relegate same-sex couples to a “stigmatized, second-class status,” which is incompatible with equal protection principles. The denial to same-sex couples of “the economic, practical, emotional, and spiritual benefits of marriage,” inflict profound injuries on the plaintiffs, Dale observed, “not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.”

The case before Dale, which will travel the appellate process and, perhaps, someday reach the U.S. Supreme Court, represents a teaching moment, an exercise in civic education. When Madison introduced the Bill of Rights to prevent the majority from riding roughshod over the rights of the minority, long characterized in literature as “the tyranny of the majority,” he echoed the views of fellow founders that constitutional rights should not be subject to the whims of voters. If they were, the concept of rights would rest on shifting sands. The reconciliation of the principle of majority rule and limits imposed by the Bill of Rights may, on occasion, test the reach of the citizenry’s civic literacy, but it is a lesson that must be grasped since it stands at the center of our constitutional universe.

The Bill of Rights, long since incorporated in the 14th Amendment, is an anti-majoritarian document, appended to the Constitution to restrain the temptations of those who wield power from inflicting their views, values and prejudices in a manner that would encroach upon the rights of minorities. Inclusion of the Bill of Rights may have been the framers’ wisest decision.

Constitutional protection afforded the rights of American citizens has not been as consistent as we would like. But barriers to the achievement of equal protection of the law have fallen in the face of persistent challenge. Justifications advanced by the majority to deny same-sex marriage, Dale noted, “echo the unsubstantiated fears that could not prop up the anti-miscegenation laws and rigid gender roles of days long past.”

The “history of our Constitution,” the Supreme Court has said, “is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Dale’s beautifully written opinion, rendered nearly 60 years to the day that the Supreme Court, in Brown v. Bd. of Education, struck down segregation in public schools, is a monument to that lesson which, in language destined for quotation, she declared: “Slow as the march toward equality may seem, it is never in vain.”

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