Does the Court ruling in Obergefell v. Hodges violate the principle of democracy as those writing in dissent (Chief Justice John Roberts and the Justices Scalia, Thomas, and Alito) have claimed? James Madison, the Father of the Constitution and Bill of Rights, would say no.
Bolstered by the legal arguments of the dissenting justices, those opposed to the Court’s decision will continue to campaign against same-sex marriages, even though they lost. It is therefore important that we examine the merits of the arguments from the dissenting justices. (1) One of the main charges brought against the majority is the claim is that this opinion is a threat to democracy and religious liberty. This allegation is based on a misunderstanding of the relationship between rights and majorities in a democracy. On this subject, James Madison had the greatest insights, and he is primarily responsible for our current understanding of how to best protect rights in a democracy.
In his fight against religious establishments in Virginia, James Madison learned many lessons, one of the most significant of these lessons was that bills of rights were “parchment barriers” when facing overbearing majorities. Acting through their representatives, majorities will inevitably push through legislation that will violate the rights of others, even when expressly prohibited by a bill of rights as happened in Virginia when an attempt was made to pass a general assessment for the support of teachers of the Christian religion. The general assessment bill failed but it prompted Madison to reconsider the assumption that legislatures are the best protectors of the rights of the people. In his Vices of the Political System of the United States (1787), which was written in response to the failures of the Articles of Confederation, Madison questioned “the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.” In exploring the root of this problem, he concluded that the cause lay “in the people themselves.” It was for this reason that Madison originally opposed adding a bill of rights to the Constitution, although he later changed his mind and became the primary author and mover of the amendments that became our Bill of Rights. Even though he changed his mind and pushed the amendments through, Madison never changed his mind about the relationship between majorities and violation of individual rights.
In contemplating a solution to the problem, Madison considered three potential brakes on the passions of majorities: 1) concern for the public good; 2) character; and 3) religion. He ruled them all out as insufficient safeguards for rights. Concerning religion, he explained to his fellow delegates at the Constitutional Convention in Philadelphia, “little is to be expected from it,” when the force of a majority is behind it. “Besides, Religion itself may become a motive to persecution & oppression. – These observation are verified by the Histories of every country antient & modern.” (“Speech at the Federal Convention” in 1787) If these were insufficient bulwarks against the tyranny of the majority, how could rights be protected?
To solve this problem he had the great insight of reversing the common assumption that republics should be small. Madison believed that if the sphere of republican government was expanded majorities would less likely be able to form and oppress the minority, because of the multitude of sects and factions. Madison, therefore, concluded that when rights were in danger the federal government should have veto power over the state governments. This proposal was voted down at the Constitutional Convention, but he pressed forward, and repeated these same arguments about majorities and sects in the Federalists nos. 10 and 51, albeit with no mention of a veto over the states. Then in the First Federal Congress he proposed an amendment to limit the states’ ability to violate rights (“No State shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.”). This passed the House of Representatives, but failed in the Senate.
Madison’s insight about the likelihood of states violating rights has proven prescient, and it was not until the passage of the Fourteenth Amendment in the aftermath of the Civil War that there was any mechanism at the federal level to protect individual rights from state governments. Madison finally got his wish. It was the Fourteenth Amendment that also proved decisive in the Obergefell decision. The federal court stepped in to protect the rights of the gay community against the unjust state laws, which prohibited them from the same privilege afforded to all other citizens.
The whole point of having rights is to prevent domineering factions from forcing minorities to conform in violation of their constitutionally protected rights such as religious liberty. Rights should not be left to the whims and prejudices of legislatures.
Despite the claims by the majority that it is they who have lost their religious liberty the ruling in Obergefell is a real victory for rights in general and for religious liberty in particular. The claim that the right to the free exercise of religion entitles some to live out their religion, and to deny that right to others is to deny those others their religious liberty. (2) In reality, their “free exercise” of religion is not in danger. They will still be able to get married as they did before; the only difference is that they can no longer impose their religion on those who do not share their beliefs. By enshrining the definition of marriage in law as a union only between a man and a woman, the state was privileging the religious beliefs of some religions over the religious opinions of others, when all should be equal in the eyes of the government.
The insistence that all citizens, not just religious societies as some have claimed, be put on the same level was the main complaint leveled against all establishments and laws privileging one religious denomination or one religion in the early republic. In Virginia, where the dissenters were freed from financially supporting the Episcopal Church, dissenters continued to be subjected to unjust laws that privileged the still established Episcopal Church. One such law was a marriage law that gave Episcopal ministers the exclusive right to perform marriage ceremonies. In 1780, therefore, the Baptists petitioned the Virginia General Assembly with a request to “redress these Grievances, in such a Way as may manifest an equal Regard to all the good People of this Commonwealth, however diversyfied by Appellations or Religious Sentiments…and in particular that you will consign to Oblivion all the Relicks of Religious Oppression, and make a public Sacrifice of Partiality at the glorious Altar of Freedom.” (3) (italics mine) This type of complaint was frequently used in protest against taxes in support of religion, religious tests for office holders, and laws enforcing the Sabbath.
The right to religious liberty does not include the right of one group to use the force of government to make others conform to their own religious beliefs and practices. The Supreme Court rightly stepped in to protect the rights of those who were denied the same privileges as all other citizens because they did not conform to the particular conception of marriage as defined by certain religious denominations; the fact that those denominations are in the majority is irrelevant.
1. Chief Justice Roberts insists that his dissent is not based in his own personal beliefs, but instead it is “about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.” (Roberts in dissent, 3) Justice Scalia argues that “[a] system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” (Scalia in dissent, 5) Justice Thomas writes, “They as nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation.” (Thomas in dissent, 3) Justice Alito asserts that “[t]he Constitution leaves that question to be decided by the people of each State.” (Alito in dissent, 2)
2. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.” (Roberts, 27)]
3. Virginia Baptist Association petition (November 8, 1780), “Early Virginia Religious Petitions,” Library of Congress.