Tyranny by the majority: in more than one arena

On Thursday, November 21, the Democrats in the United States Senate, the heretofore “greatest deliberative body in the world,” changed the rules that have guided it since 1789. That’s a long time. It was not bipartisan. Not a single Republican voted for the change. Three Democrats voted against it. The vote was 52 to 48 -- a simple majority – to change a rule that would now allow a simple majority, rather than a supermajority, to confirm the presidential nominations of executive officers who would serve at the pleasure of the president – and, more, those of federal judges (other than Supreme Court justices) with lifetime appointments. We know what the Senate was like before November 21.
We do not know what the Senate will be like after that fateful day. When Senate majority leader Harry Reid (D.-Nev.) exercised this “nuclear option,” did he assassinate the United States Senate?
But we’ve seen this tyranny by the (simple) majority before – in another arena. I call your attention to the process by which this country is adopting same-sex marriage.
The table I have produced (see here) provides a short description of how 18 jurisdictions have changed the definition of marriage from one-man/one-woman to two-people-of-any-gender.
This table is in alphabetical order by jurisdiction. If it were in chronological order, you might more readily see any snowball effect, and the effect of the U.S. Supreme Court’s decision earlier this year.
The table does not provide you with more historical context within each jurisdiction, such as lawsuits won or lost, statutes or constitutions limiting marriage to one-man/one-woman, legislation providing for civil unions, the history of bills providing for same-sex marriages. It also does not include legislation enacted after judicial decisions – such as where state legislatures “fall in behind” the judiciary’s lead and codify judicial rulings requiring same-sex marriage.
The purpose of the table is to put before you in the starkest manner the fact that the character of marriage is being changed:
firstly by the courts, in six jurisdictions, and five of those six were by the narrowest of margins;
secondly by nine legislatures where five of them had at least one chamber with 61% or less voting in favor of same-sex marriage; and
thirdly by the voters in three jurisdictions – in two of these by about a 5 point difference and the third by about 8.
Even the proponents of same-sex marriage, even the judges and legislatures who have supported it, cannot gainsay the fact that this change is a major one in the history of the human race. This is not a change in the age of consent. This is not a change in the grounds for divorce. This is not a change in who is authorized to witness a marriage or how to fill out the paperwork. And yet the rules are being changed by court decisions by one vote, and by legislatures and voters by less than a 60-40 ratio.
We Americans pat ourselves on the back for having the first written constitution. We are “above” the British with their unwritten constitution. The British know they can change any of the provisions of their unwritten constitution at any time – by a simple parliamentary majority. But it is rare indeed for them to do so. At the same time, we fail to see that the definition of marriage as between one man and one woman was part of our American unwritten constitution. It was foundational.
The Framers of the U.S. Constitution and of the state constitutions would not have foreseen such a change in the foundational, constitutional, definition in marriage – even as late as when Alaska and Hawaii were admitted in 1959. So, naturally they did not include a provision requiring a supermajority to make a change in the foundational, constitutional, definition of marriage. This meant that, just like the U.S. Senate rules, a simple majority can change the definition of marriage. 
But, you respond, many of the states have constitutional provisions in place that limit marriage to one-man/one-woman and some of these state constitutions require supermajorities to repeal them. And you add that it makes sense to require a supermajority to change the definition of marriage since other legislation, like raising taxes, can require a supermajority. True enough, I reply, but after the Supreme Court’s decision in Windsor, it will only take a few judges to imitate the language of Justice Kennedy in Windsor (as shown by Justice Scalia in his dissent) to render such state constitutional provisions null and void under the U.S. Constitution.  
The Senate’s rules were less than 225 years old. The rules of marriage were older, much older, than that. Changing the Senate rules was called a “nuclear option” because it ends the Senate as we knew it. So, too, we knew what marriage was like before the 21st century. We cannot know what marriage…and family…and children…and this Nation…will be like going forward.
Indeed, this isn’t even just about same-sex marriage. It’s about any aspect of sexuality and human reproduction. Indeed, it’s about everything. As Senator Arthur Vandenberg (1884-1951; R-Mich.) said about the Senate rules: 
If a majority…can change its rules at any time, there are no rules.
Spero columnist James M. Thunder is an attorney who practices in Washington DC. 
The views and opinions expressed herein are those of the author only, not of Spero News.
Filed under politics, politics, us, judiciary, Analysis


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