Equally Free

In 1954, while the Warren Court deliberated over its decision in the case of Brown v. the Board of Education of Topeka, popular discussion buzzed around everything from child psychology to the conceptual validity of “separate but equal institutions.” By the time that ruling was handed down, however, the decision boiled down to one fact: State and local laws that segregated American citizens on account of their race violated the constitutional promise of equality.

It is no accident that, in the wake of the Connecticut state supreme court’s decision this Wednesday to permit same-sex marriage, the conversation assumed this same character, highlighting the essential importance of equality in American government and the courts’ responsibility to protect it.

But even as the Connecticut decision brought celebration to New England this week, it was a stark counterpoint of last week’s wave of bad news: from California, Florida and Arizona, all of which passed referenda amending their state constitutions to ban same-sex marriage. Even as Massachusetts and California appeared at one point to sit at the vanguard of a movement for marriage equality in the United States, the popular tide seems to have turned in a worrying direction.

In Democracy in America, Alexis de Tocqueville famously opposed freedom with equality, suggesting that the passion for the latter would always override the will for individual liberty. At present, we are confronted with an exception to his rule, as popular majorities assert their collective will by denying same-sex couples the equal legal standing they themselves enjoy. While America’s participatory democracy is in most cases something to be elevated and emulated, in the particular case of minority rights, electoral majorities should not have the final word. This is especially true when popular sentiment demands changes in the constitutions that provide our democracy’s stability and order, largely as a means of exclusion.

Even as a historic presidential campaign spent months demonstrating the need for unity and the fruitlessness of the divisive politics of morality, the states seem to be picking sides on the intractable issue of same-sex marriage. More troubling than the simple passage of Proposition 8 in California are the national reverberations such an event might trigger. Even the thwarted opponents of gay marriage in the state of Massachusetts might take heart and be reinvigorated in light of this development.

Faced with this new set of bans, supporters of same-sex marriage can take action in two distinct and meaningful ways. In California, where the unsuccessful campaign against Proposition 8 seemed at times to lack a sense of purpose, young activists have ended their silence—organizing vigils, boycotts, and rallies to alter public perceptions and enact change even after the votes were cast. Their strong response, while a little late, should serve as inspiration for other Americans disturbed by the recent drawing-down of gay rights, toward the emergence of a broad national movement in support of same-sex marriage as a right like any other.

This California contingent’s program of challenging tax-exempt institutions that visibly backed Proposition 8—including Mormon, Catholic and Orthodox Jewish religious organizations and groups like the Knights of Columbus—is a deserved one; these institutions have a responsibility not to lobby and fundraise substantially for any political cause, let alone the dubious one in question.

In the United States, it is a rare thing to hear calls for the overturning of clear majority opinion. But subjective mass sentiment has progressed too far when it is permitted to so carelessly meddle with the documents on which state and federal government are founded. Given that constitutions are meant to push back against fickle and sometimes bigoted democratic movements, states should protect their own order, and all their citizens, by insisting upon a super-majority threshhold when amendments are at hand. While this may be understood as a limitation placed on individual will, such a barrier would ultimately protect a state’s entire population from reckless legal dynamism.

In 1954, the Justices of the Warren Court made themselves clear: “The ‘separate but equal’ doctrine adopted in Plessy v. Ferguson has no place in the field of public education.” We may only hope that, in the case of same-sex couples, similar prudence prevails, and that the Constitution’s promise of equality may ensure that they no longer be kept separate, at an irrational remove from the institution of loving marriage.