More on Prop 8 and democracy – a reply to Left Outside
The ever-readable Left Outside has written a response to my post from the other week on Prop 8. It’s well worth a look, but (surprise, surprise) I’m afraid I have some issues with it. His argument, as I read it, is twofold:
First, in order for there to be democracy in a society, there must be political and legal institutions which enable it to happen. “Many of these institutions are not compatible with simple majority rule,” he writes, “but as these institutions are foundational for Democracy it is not credible to call them undemocratic.” What gives a proposed policy the democratic legitimacy to enter into law, he argues, is not simply that it enjoys the support of majority opinion but that (in the case of policies decided by referenda, like Prop 8 ) it was shown to enjoy this support under the rules of these institutions which are preconditions for democracy.
Second, in order for a society to be a democracy all citizens of that society must enjoy formal equality before the law: “without [legal] equality there can be no Democracy.” This, needless to say, is why LO believes the overturning of Prop 8 to be democratic – the referendum which passed the legislation in the first place clearly met his first criterion for democratic legitimacy.
The first part of this argument is clearly true, insofar as participation in a democracy clearly entails at least tacit consent to the set of rules governing how, when and for what purpose (e.g. electing representatives or deciding issues by referendum) majority opinion is polled. I’m also happy to agree there should be legal and political institutions to enforce those rules, though an anarchist would disagree. But it doesn’t follow that those rules are value-neutral, or that all sets of rules are created equal. We’re generally quite comfortable to describe different forms of government as more or less democratic (I think that proportional representation is a more democratic form of representative government than first past the post, for example), and to ascribe a value of democratic legitimacy to political decisions on the basis of this. I contend that a system of government should be judged on how democratic it is by how closely the policies it produces correspond to the majority view of its voting citizens on those policies. Since policies decided by referenda are by definition settled directly on the basis of a popular vote, rather than by the decisions of elected representatives, I suggest that referenda are, prima facie, a more democratic method of decision-making than electing representatives to make decisions, regardless of the advantages or disadvantages of either method.
As for the second part of LO’s argument, I’m afraid I have to disagree completely. Certainly equality before the law is a necessary precondition of democracy, but this is true only in quite a limited sense. For any society to be legitimately called a democrary no one in that society can be arbitrarily barred from voting (and I realise that what counts as arbitrary in this context is a very knotty question in itself), and certain other legal provisions which help to safeguard democracy must also be in place – freedom of speech, of conscience and of association are three LO rightly mentions in his other post on this subject – but the right to marry a member of the same sex as yourself does not, I submit, come under this heading. If LGBT people were barred from voting, from demonstrating or from speaking out, that would undermine democracy, without a doubt. But denying someone the legal right to marry who they want doesn’t do that. A law preventing people from marrying someone of the same sex is discriminatory, stupid and wrong, but not being able to marry who you want to doesn’t in any way stop you participating in the democratic process. It’s an infringement of liberty, but it really doesn’t have anything to do with safeguarding democracy. This is not to say that either democracy or LGBT rights are not worthwhile causes – both of them absolutely are. But we need to accept that sometimes the political values we cherish can come into conflict. And when that happens there’s a real debate to be had about which should be accorded more weight. Denying that any such conflict exists just isn’t sustainable.
Reader Comments
The right to marry should be available to all. Otherwise the laws relating to marraige are discriminatory. Simply demonstrating that there is ‘majority’ support for discrimination against a group because of their sexuality doesn’t make it democratic because democracy cannot co-exist with discrimination. If one person has fewer rights than another then society clearly does not hold them to be equally valid citizens. Majorities do not have the right to discriminate on this basis. In the same way that if the law prevented mixed race marraiges it could not be justified by “democratic” arguments even if it received majority support. democracy is more than simply the right to put your x on a ballot every 5 years. Democracy requires that citizens have the legal right to participate in all society’s institutions on an equal basis – otherwise its the sort of democracy favoured by Jim Crow, Apartheid or Israel.
Democracy can’t co-exist with discrimination? Even assuming that you just mean state-sanctioned discrimination rather than any discrimination at all, I don’t think that’s a very plausible claim. A state that barred some of its citizens from playing a full part in the *political* life of the country wouldn’t qualify as a democracy, certainly – I quite explicitly state in my post that there’s more to being a democracy than just letting everyone vote – protection for freedom of speech, of assembly and so on are vital too. But I fail to see how being barred from marrying who you want to in any way stops you playing a role in political life – both you (Ady, that is) and Left Outside just seem to be baldly asserting that it does, without any explanation. If someone can explain the causal link then I’m happy to be convinced otherwise, but it seems demonstrably false.
Just to reiterate, this is *not* to say that banning gay marriage is OK – as I thought I’d made very clear on more than one occasion in both this post and my last article on the subject, I think it’s wrong and discriminatory. My point is simply that the reason why a ban on gay marriage is wrong has nothing to do with democracy, that the case of Prop 8 highlights that there are some areas of life where the preferences of the majority may not be legitimately imposed on the minority, and hence that democracy should have limits.
I think I made the point in reply to your last post that you are assuming a representative model of democracy in which a simple numerical majority is required to win the argument.
As you will be aware, deliberative democratic theorists like Habermas would argue that democracy should focus instead on the “unforced force of the better argument.”
Most deliberative accounts of ‘public reason’ exclude grounds that can not be shared with others, because coercion can not be justified to those over whom it is wielded unless the arguments used are accessible to them.
According to this account, a lot of the arguments used in the Prop 8 case would be deemed invalid because they are based on controversial moral, political, religious, and philosophical positions that can not be shared with others.
I have my own reservations about these accounts of democracy, but it does demonstrate that not all forms of democracy are incompatible with the rights of minority groups.
Fair point. But I’ve never really got how that kind of democracy would work. The number of topic areas you’d be able to debate if you ruled out those based on premises not shared by every member of the polity would be pretty damn small.