decision of a US district court to strike down Proposition 8, the California referendum item that made gay marriage illegal after it had earlier been legalized
by the state assembly, was a blow for individual rights over a tyranny of the majority. In its form, it resembles the decision of the New York authorities to allow a Muslim community center to be built near Ground Zero, which Sarah Palin and other prominent Republican Party bigots have decried as “insensitive.”
Both in the instance of gay marriage and of mosque-building, the American Right mounts opposition on grounds of majority ideas and feelings triumphing over individual rights. No one denies that Muslims have a first amendment right to build a mosque, and it is hard to see why straight people should have a right to get married (which brings substantial social and economic perquisites) but gay people should not.
The right wing argues that Muslims and gays should give up their rights in deference to the moral sensibilities and emotional sensitivities of the majority. This is called a ‘tyranny of the majority’ and it is an evil of which Thomas Jefferson, James Madison and the other Founding Generation of Americans were well aware.
One principle Jefferson put forward for taming this tendency of the majority to whittle down the rights of the minority was of non-harm. His argument for freedom of religion, for instance, was that “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
– Thomas Jefferson, Notes on the State of Virginia, 1781-82
Thus, we could argue on Jeffersonian grounds that gay marriage or mosque-building does no material harm to other individuals, and therefore should not be prohibited by the government or by factions in control of the apparatus of government. In fact the judge in the Prop 8 case pointed out that no religious group had been required to recognize gay marriage, so Prop 8 could not be held to redress a wrong to such groups.
The Founding Generation thought that the default was individual freedom. You should be able to do as you please if it does not produce a property or contractual tort toward others.
The current iteration of the American right wing does not accept this Jeffersonian principle. Sarah Palin pleaded with ‘moderate’ Muslims not to build a Muslim community center near ground zero because it would hurt her constituents’ feelings. Abraham Foxman of the Anti-Defamation League, a strident component of the Israel lobbies, likewise opposes the building of a Muslim community center in New York on the grounds that it would hurt the feelings of families of September 11 attack victims (even though those attacks were by a small mad cult, not by Muslims). He said that the issue was not rights but doing what is right. But he means by ‘what is right’ that the minority should relinquish its legal rights in order to avoid an affront to the sensibilities of the majority. That way lies, e.g. refusal to oppose Jim Crow. You wonder if Foxman thinks that there should be no synagogues near the US naval academy in Annapolis, Maryland, to avoid offending those who feel strongly about the Israeli attack in 1967 on the USS Liberty. Likewise, those who oppose gay marriage do so on the grounds that they think it is immoral, and that it devalues straight marriage. I.e. it hurts their feelings.
Legislating a reduction in the rights of some so as to avoid offending the majority is a tyranny of the majority. It is an evil temptation within any democratic system. Madison thought that representative government could temper the passions of direct democracy and so perhaps avoid the worst excesses of majoritarian oppression. The California referendum system that allowed a popular vote (bought in part with Mormon funding) to over-rule the government of California is precisely the sort of outcome Madison feared. But his other hope was that a separation of powers might work against a tyranny of the majority. For the moment, an independent judiciary has indeed weighed in. But the supreme court itself has increasingly become a tool of the majoritarian establishment, and it is not clear that it is capable at this juncture of playing the role envisaged for it by Madison.
But this is what is at stake in both gay marriage and Muslim mosque building from the point of view of those who believe in the American tradition of civil liberties for individuals, in the default position that the government has no business regulating unharmful individual activity. It is nothing less than the assertion of inalienable rights over the whims and emotions of a very large mob.