Who really defends the Constitution? (update)

Following upon on Chris Christie's veto of marriage equality in New Jersey, and the remarkable idea in contravention to the Constitution that a minority should have its rights voted on by the majority: Andrew Sullivan points out how the minority opposed to marriage equality keeps changing the rules, and can't even manage to be consistent in their "pro-Constitution" views. (My emphasis)

They moved the goalposts on us. When we actually began to win in state legislatures, such as California (twice!), or New Hampshire, or now Maryland and New Jersey and Washington State, that process became suddenly unacceptable - and undemocratic! - as well. Even on an issue many hold to be a core civil right, we were told the courts were irrelevant and now that the legislatures were irrelevant. This was particularly odd coming from conservatives who at one point in time were strong believers in restraints on majority tyranny. But this is what a legislative debate can do that no referendum can, and it's why the founders established a republic not a pure democracy:

...But the way in which a tiny 2- 3 percent minority seeking basic civil equality has been forced now to be subject to state referendums, even after winning legislative victories, strikes me as revealing. It's basically an attack on representative government, a resort to the forms of decision-making which maximize the potential for anonymous bigotry and minimize the importance of representative government, a core achievement of Anglo-American democracy, that can help enhance reason of the accountable against the sometimes raw prejudice of the majority.

Christie is a man whose candor I admire in many ways. But this was an act of cowardice and unfairness and a misguided disregard for representative democracy. How many other duly enacted laws must now be sent to the referendum process for final judgment. Why have a legislature at all? And this from the party that claims to defend the Constitution.

Live your life by your own values. Set an example if you choose. But do not, in a representative democratic republic, presume that you can force your views on those who equally passionately, believe differently.

Update: Meanwhile, the Prop8 case will have its next level of appeal to the 9th circuit en banc. And gay couples still can't marry in CA.

Equality under the law

Some things to remember:  the Constitution protects the rights of minorities.  That is why we cannot vote to outlaw inter-racial marriage, to segregate schools, to prevent Mormons from marrying, or to forbid Jews to own property.  And what the courts have said is that gay people have those same rights.

Americans overall are equally split on whether same sex couples should marry.  Ironically, a strong majority of Roman Catholics approve of marriage. (data here)

And just remember, in 1968, after laws against inter-racial marriage were overturned, over 70% of Americans DISAGREED.    Imagine the outcome if they had voted on it?

Why is it that Conservatives who so favor the Constitution, forget all about it when it comes to equal protection? It doesn't say, equal protection only for straight white Christian men.

Fred Phelps, Hate Speech, and the First Amendment

Right-wing loony Fred Phelps and his followers have a revolting habit of picketing the funerals of dead servicemen and claiming that it's all the fault of the gays. Whether or not he can be stopped from this resulted in a case that went to the Supreme Court:

The case decided Wednesday arose from a protest at the funeral of a Marine who had died in Iraq, Lance Cpl. Matthew A. Snyder. As they had at hundreds of other funerals, members of the Westboro Baptist Church of Topeka, Kan., appeared with signs bearing messages like “America is Doomed” and “God Hates Fags.”

The church contends that God is punishing the United States for its tolerance of homosexuality.

The father of the fallen Marine, Albert Snyder, sued the protesters for, among other things, the intentional infliction of emotional distress, and won a substantial jury award that was later overturned by an appeals court.

The Supreme Court found that for all his hatred and vileness, Phelps has a right to do that.

“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

I believe this was the right decision. We do not, in this country, block even vile speech. Yes, it means Phelps can use vicious words. But blocking speech the majority finds difficult would also mean that pro-women's rights or pro-gay voices could be silenced. As Adam Serwer writes,

By 8-1, the Supreme Court voted no. It's one of those rulings that reminds you that at least on some very basic understandings of what "free speech," means, both conservative and moderate jurists on the court are on the same page: You don't forfeit your First Amendment rights just by being an asshole.

The real measure of whether you actually do believe in the Constitution, is whether you believe it really does apply to everyone, not just those whose views the majority finds palatable. It's the argument that makes it abhorrent to block marriage for gay Americans, or to deny Muslim Americans the right to build a mosque. If you really believe in free speech, then you have to support even those whose speech is offensive.

What do you think?