Can the Majority Take Away the Rights of the Minority

March 6, 2009

This is from my Facebook posting this morning.

In the Supreme Court of California today, they continue the debate on Proposition 8. The question posed by opponents is this: Should the Majority be allowed to take away rights of the Minority? As Ken Starr pointed out yesterday, the question is not “Can they?” for that is well established in the rule of Law in America. The question is properly “should they?”.

When you ask a “should” question, it is an inquiry into morals and ethics. In order to decide the answer, you must know the basis of a country’s ethical decisions. John Locke, the English politician and scientist, proposed that no rule of law (except one) can exist without a moral consensus. A moral consensus is an agreed upon higher law that all human laws are based. That may be a religious book, a belief in God or in a higher code of law. If you do not have a moral consensus, there is no basis upon which to answer any question of what “should” happen.

After all, who is to say what constitutes a “right”? If it doesn’t come from an agreed upon higher law, then how can anyone say there is an absolute right or wrong?

Locke did recognize that there is an alternative to Moral Consensus: the opinion of the Majority. If you cannot agree as a nation on a higher rule of law, then you must define law by the mood of the public.

In California, that means the majority can decide to limit any rights they choose – especially when those rights are not defined or spelled out.

Therefore, the homosexual marriage lobby is stuck between a rock and a hard place. They cannot appeal to any Moral Consensus for their “should” – no religion or rule of Natural Law accepts homosexual behavior – so they must court public opinion. And at the moment, it is not in their favor.

Or am I missing something?



  1. There’s another related question: how can the Supreme Court of California strip the right of the entire electorate by overturning a duly and legally conducted referendum vote on spurious – at best – legal grounds?

    BTW: That question would still hold true if the relative positions of the two sides of this argument were reversed and the courts were considering invalidating the vote of the people.

  2. Jonolan: I’m pretty sure I dealt with that. What the electorate did a few years ago needed to be strengthened into a Constitutional amendment. This is what Prop 8 is about. Once it was done, then the courts really can’t overturn it unless they see it in conflict with other parts of the Constitution. But, the real question still remains: “Should the majority be able to dictate to the minority?” I believe that they should because that is the only rule of Law we have left to us.

  3. So slavery “should have” existed as long as it did? The ban on interracial marriages “should have” existed as long as they did? Religious and natural law arguments were made to support them, even if we find them flawed today.

    I think you’re missing a major point here: equality.

    We aren’t shooting in the dark on this one: marriage happens in CA. Some people can participate, some can’t.

    And since we have decided no workplace can discriminate on gender, race or sexual orientation, why should the state be able to discriminate in regards to marriage?

    I think the history of the US has shown that, ultimately, the majority can rule on everything except minority rights.

    And we seemed to have defined rights by equality for all.

    Remember Brown vs Board of Education?

    Separate but equal is just unequal. The gay marriage rights issue is the same.

  4. Brittany, I think your points are debatable, but I don’t think you are hearing my point. If we are going to say that we “shouldn’t” take away someone’s rights, you have to have a moral basis to say it. There are only two legitimate bases upon which to establish points of law: 1. Moral Consensus (a higher law that we base our laws upon; 2. Majority rule (Whatever the majority thinks is right). If you don’t like majority rule, you have to tell me what standard we are going to base our law upon.

    Also, we have many minority groups that we have taken rights away from. We don’t allow people to own handguns if they have committed a crime. We have taken many rights away from Mormons and their approach to polygamy. We don’t allow cousins to marry. Jehovah’s Witnesses cannot practice their views on blood transfusions. Those who don’t want to pay taxes are forced to pay them.

    We take away the rights of the minority all the time. All the time. But most of those “takeaways” I mentioned are based upon Natural Law dictates. So if you don’t like Separate but Equal then you have to sell your point by establishing WHY we believe in certain rights. Either by moral consensus or by majority rule. Those are the only two bases to do it on.

  5. That very eloquently sums up the situation, mikeinsac.

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