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.

James Madison

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. Continue reading →