Exceptions prove the fallacy of majoritarianism

Where to begin today? New York’s Court of Appeals ruled that the state can continue discriminating against same-sex couples. Apparently, a heterosexual oopsy with birth control proves that gays and lesbians don’t need the same rights.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

My interpretation is a slight simplification of the majority’s opinion, but only slight. Because a heterosexual couple can create¹ life because they forget to use a condom, they need marriage rights to help those potential offspring. Even if the couple isn’t married when the child is conceived. Or seeks to stay married. Or intends to ever get married. Nope, doesn’t matter. This decision is crap². Remind me again who is seeking special rights in this debate?

Meanwhile, the Georgia Supreme Court upheld its citizenry-supported bigotry today. I don’t have anything to say about the decision itself. Instead, I’d like to highlight the patronizing majoritarianism of Georgia’s governor:

“We don’t do a referendum very often,” Perdue said. “But when we do a referendum such as a Constitutional amendment, I think we need be very respectful of the people’s voice and listen to that. I think the Supreme Court has done that and I’m very grateful for their action and their affirmation of the people’s voice in overturning the trial court’s opinion.”

The governor also said that he hopes gay Georgians do not feel marginalized by the decision. He said they are free to work and live their lives here – they simply can not marry in the state of Georgia.

I’d like to find a direct quote supporting that second paragraph. If his words verify that summary, does that come with a pat on the head? I can only hope that every gay Georgian says a big “Fuck you” on his or her way out of the state.

For excellent analysis of this decision, read this thread at A Stitch in Haste.

¹ Excuse me. Since we’re now going with majoritarianism instead of science, our bigotry must conclude that a man and a woman cannot create life. Only the monotheistic God our nation’s founders included in our Constitution’s First Amendment is capable of such divine action. And traditional marriage is his conduit.

² Read Chief Judge Kaye’s dissent. It’s not possible for someone who understands our principles defining individual rights could walk away from reading this dissent and still think the supposed majority has any right to deny a fundamental right to anyone in America.

“It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation,” she wrote. “The court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy. I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Majoritarianism can’t accept that. The New York Court of Appeals proved today that it’s an activist court.