From Truth Dig: http://www.truthdig.com/report/item/same-sex_marriage_and_the_supreme_courts_historic_choice_20121210/
By Bill Blum
Dec 10, 2012
At least this much can be said of the Supreme Court under John Roberts now that the high tribunal has agreed to review two cases testing the constitutionality of same-sex marriage: The chief justice and his colleagues don’t duck the hard ones. In agreeing to examine California’s Proposition 8 (Hollingsworth v. Perry) and the federal Defense of Marriage Act (Windsor v. United States), the court has created a defining moment, not only for its own legacy but for the country as a whole. By upholding the right of same-sex couples to marry, the court could lay the foundations of an expansive constitutional framework for the 21st century. By deciding in the other direction, the court could take us decisively backward. History is at stake.
The easiest way to tell that the opponents of same-sex marriage are on the wrong side of history is that their strongest argument is an updated and hypocritical iteration of one the nation rejected a century and a half ago. This is the contention that in democracies, majorities rule and that once a law delineating individual rights is duly ratified—either by way of a ballot initiative, as in California’s Proposition 8 in 2008, or by an act of Congress, as in the 1996 passage of DOMA—it should withstand judicial scrutiny. As Tony Perkins, president of the conservative Family Research Council (which helped write DOMA), exclaimed in a press release issued soon after the Supreme Court’s announcement that it would take on the two marriage cases, “Voters … will not accept an activist court redefining our most fundamental social institution.”
On the eve of the Civil War, the notion that majority rule trumped individual rights was known as “popular sovereignty.” The concept was at the heart of the most famous electoral debates in our history—those between Democrat Stephen Douglas and Republican Abraham Lincoln in the Illinois Senate contest of 1858.
With the union fast unraveling over the question of slavery’s spread into the Western territories and particularly Kansas, Douglas defended the right of each jurisdiction to vote slavery up or down. Lincoln, though not yet a committed abolitionist much less a proponent of true racial equality, countered that popular sovereignty not only undermined the long-term goal of the nation’s founders to set slavery on a course of “ultimate extinction” but that the idea of leaving individual rights to the changing whims of political majorities corroded, rather than advanced, the ideals of self-government.
Writing in a 2009 Daily Dish blog post about the brewing controversy over Proposition 8, political commentator and gay rights activist Andrew Sullivan cited one of Lincoln’s 1855 letters, in which the future president reasoned:
Continue reading at: http://www.truthdig.com/report/item/same-sex_marriage_and_the_supreme_courts_historic_choice_20121210/
