LGBT News Citizen's Initiatives Dealt A Significant Blow

I disagree with aspects of his point, though I do not object to the conclusion he draws (regarding precedent where the state refuses to defend the laws passed).

My opinion may be colored by the fact that I do not generally look favorably upon direct democracy. I understand the importance of allowing the people to act as a check against the elected representatives, but this check can be exercised when it comes to elections by voting them out and voting in people who share your point of view.

The largest objection that I have to this point of view, and to the article in general, is that it assumes that a majority of the people have the power (or SHOULD have the power) to revoke or deny the rights of others (generally minority groups). We sometimes see this in legislatures as well, but this is why courts exist. They exist to uphold the Constitution and the rule of law. This means someone who is a minority is (or should be) as equal under that law as someone who exists within the majority opinion and likely has cultural, social, or economic privilege.

This was clearly the case when it came to Prop 8, and thus I do not see how a Court - even if the government refused to defend the law - could refuse to hear the case. Furthermore, I will point out that the plaintiffs in the case still had a right to challenge the law, regardless whether or not the government defended it. But more broadly, the underlying notion of citizen led initiatives and direct democracy is problematic, and it is ALWAYS a threat against minority groups and opinions.

Quite literally, every right that we possess is at risk if things are placed in the hands of the majority. Things like Freedom of Speech does not exist to protect popular speech, it exists to protect unpopular speech... and being unpopular means the majority of people don't like it and would therefore likely move to silence it.

What is being supported is effectively the tyranny of the majority. If you're an oppressed and despised minority what exactly is the difference between one man who is a tyrant who hates and oppresses you, and mob rule where the majority of people who hate you unite to oppress you? The answer is nothing from the perspective of the one being oppressed. This is why natural rights are important, and having those rights enshrined in a Constitution which restricts the power of the government to encroach upon those rights and empowers a non-biased Judicial system to defend those rights is very important.

The Founders understood this and that is why they formed a Republic.

"Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third. Will the latter be secure? The prudence of every man would shun the danger. The rules & forms of justice suppose & guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand?" - James Madison

"A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine." - Thomas Jefferson

 

Taken too much in the other direction, opposition to the tyranny of the majority is just plain tyranny, though. With the tyrant(s) casting themselves as paternalistic philosopher-kings exploi... err... leading unwashed masses for their own good, they're too stupid to comprehend themselves.

Yes, building broad popular support for a minority cause (like LGBT rights) is a big challenge, and yes, freedoms of speech, assembly, etc. are essential for that and so their preservation should be outside of any direct democratic process, and even yes, while that support isn't there a lot of damage can be done.

But any freedoms granted by legislative fiat, without that majority support are worthless. See what happens in Russia right now, - 20 years ago Moscow giveth, not because of any local gay rights advocacy, but to show how Western and liberal it is, now Moscow taketh away, just to spite "The West." Had there been any genuine effort to build popular support for LGBT rights, Putin wouldn't ever do what he did.

 

Well, as I understand the opinion, it didn't state that no one has standing in cases like that. It just put up some criteria that Prop 8. supporters didn't meet. But, knowing about those criteria beforehand, I think it's possible to write an initiative in such a way that some NGO would have standing if the government refuses to defend... Then again, I'm not a lawyer.

 

It's always a difficult balance, but the people elect the executive and the legislature who in turn appoint those who sit on the Court. Now, my personal opinion is that the Supreme Court should have term limits, it's size should be expanded, and Presidents should be limited in how many they can appoint. This in an of itself helps deal with a lot of the problematic situations that we face today (and worse scenarios that we could face in the future).

However, I agree that it's equally bad to have a Court who just decides to overturn and throw out laws. What we want is a Court who can protect minority rights and groups against the tyranny of the majority. ...because after all, if the Court doesn't do it, then who does?

There is absolutely no substitute for building grassroots support and swaying public opinion. However, it is very much possible to fail to do that, or to have individuals in politics or the public to move to stop such a thing from happening to preserve the status quo.

When LGBT people began coming out of the closet and fighting for our rights, we faced a great deal of discrimination from the government. It would not be uncommon to be targeted by police for punishment, or to struggle to get the proper permits to hold a parade or mass public protest. They sought to silence us because they saw us as disgusting and obscene - surely the public (which was overwhelmingly against us) and their elected officials (which was also overwhelmingly against us) had the right to censor our obscenity, right? No. We still maintained our right to free speech protected by the First Amendment.

Without being able to turn to the Judicial system to protect our right to even speak publicly about our sexuality, we would have never gotten the chance to make the case to the people or build the grassroots movement.

And this is exactly what is going on in many countries across the world right now who are attempting to prevent similar movements in their countries.

What is going on in Russia right now is a complicated issue. It has to do with local politics (specifically those involving Putin), the Russian Orthodox Church, and a bunch of other stuff that deserves it's own thread entirely. It has less to do with spiting the West than it does with local politics.

Yeah, I know.

I addressed his conclusion in my first paragraph where I said I largely agreed with the conclusion that he draws. He is saying that since it's a bad precedent that the state of California wasn't required to defend Prop 8 in court, because it means that any government could refuse to defend any law. After all, as he points out, one of the main points of Citizen's Initiatives is to go over the heads of elected leaders. If the people support something through an Initiative, and the state refuses to defend it when challenged in Court, it is a bad precedent for ALL Citizen's Initiatives.

I agreed with him there. However, I then moved on to make a larger point, which involved me decrying the existence of Citizen's Initiatives in the first place. I see them as primarily a backdoor to assault minority rights under the guise of popular opinion.

...and of course, anyone who has seriously dealt with a low information voter would be terrified at the thought of them voting for anything or anyone.

"No, no, ma'am. I can assure you the President WAS indeed born in the United States and I - wait... what? No, no... the President is NOT the anti-Christ... Oh? You've seen the signs? Um. Uh. Okay, ma'am. Have a nice day, thanks for the information."

 

Yes, it's complicated, but the main point stands, - the whole reason it's even possible is that popular support just isn't there.

just as a sidenote, I think people tend to over-estimate the role of the ROC in all this. Soviet communists were just as homophobic and generally prudish as American conservatives, without any religious help... So, any leader who casts himself as bringer of the Law and Order as it used to be back in the USSR would want to be seen as "tough on deviants."