Is It OK to Subvert "Democracy" in the Pursuit of Equality?

The inspiration for this post comes from a fairly unlikely source: Melissa Etheridge's appearance on The View. Yep. That The View. The video is above, the pertinent parts start about a minute and a half in. I first came across this on other blogs, which chose to highlight the awkwardness between Etheridge and token conservative Elisabeth Hasselbeck during their discussion of the passage of Prop. 8 in California. I, however, got something entirely different out of it.

Etheridge talks about how putting the human rights of minorities, in this case the right to same-sex marriage, to a public vote strikes her as un-American. While I'm hesitant to assign any value at all to Hasselbeck, she is useful in that she can produce conservative talking points and cliches on a moment's notice and without any original input or nuance. Thus, the typical views that "the will of the people" shouldn't be subverted by "activist judges" and that the majority of people have spoken out against gay marriage and that American-style democracy should absolutely be respected were effectively set out.

This is something that I've been thinking about for a few months now. And, honestly, arguments like Hasselbeck's used to hold some weight with me. I mean, that's supposedly the whole idea of democracy, right? The will of the people? Should I really support that being overridden, even when my own rights hang in the balance?

Well, like so many other things, the arguments become clearer when the discourse involved become less muddled, and a lot rides on understanding the terms involved. While the Founding Fathers were obviously fans of representation and citizens' voices in government, it was never really their intention for direct democracy tools like ballot referendums to be used to decide the civil rights of minorities, for fear of tyranny of the majority.

I discussed the issue with a friend who's pursuing a PhD in Political Philosophy (almost as useful as my degrees!) and he pointed out the difference between democratic institutions and a democratic society. As he told me, "Democracy is much more than a form of government; it is a relationship citizens have with one another in their societal interaction. Citizens in a democratic society view each other as free and equal members in a fair system of cooperation. The democratic political arrangement should model and express the equality of its members in its design at the highest level of political authority." So "democracy" isn't just about respecting the majority view, but our inherent equality as well.

Despite this fact, referendums continue to be seen as the most democratic means to decide rights, which is unfortunate, since political minorities do not do well at the polls in the United States, according to Barbara Gamble's article "Putting Civil Rights to a Popular Vote." While all minorities have suffered in this way, of the groups she examines, "gay men and lesbians have seen their civil rights put to a popular vote more often than any other group," with the vast majority of them ending in the restriction or elimination of the rights of sexual minorities. All-in-all, in terms of civil rights and direct democracy, the situation in the United States is fairly bleak: "citizens in the political majority have repeatedly used direct democracy to put the rights of political minorities to a popular vote," and "not only that, anti-civil rights initiatives have an extraordinary record of success."

So, while, in the wake of Prop. 8 and the glaring failures of the "No-on-8" campaign, there have been more calls for greater grassroots mobilization, the true route to success may be through far less pluralistic means. Take South Africa, for example, a country which, when drafting a brand new constitution in the mid-1990s, became the first country in the world to include a non-discrimination clause based on sexual orientation in their Bill of Rights, despite nearly 90% of the population being against it. How did they do it? Through popular engagement and consciousness-building? Nope. At least not initially. It was accomplished through elite connections and interest group mobilization. Rather than appealing to the public and their morality, gay rights activists used personal connections and behind-closed-doors lobbying to get gay rights into the first draft of the document before the constitution was opened up for public comment. Effective? Yes. Shady? Maybe.

As a politically liberal person, the idea of special interest groups and secret lobbying makes me uneasy. And yet, these methods have been well-documented as being effective for the LGBT community due to its small size and its stigmatized nature around the world which may make it difficult to attract straight allies.

As political scientists Donald Haider-Markel and Kenneth J. Meier write in their article "The Politics of Gay and Lesbian Rights: Expanding the Scope of the Conflict," "clearly any group representing a minority this small knows that without generating sympathetic support from the straight community, it will remain a minority in the highly politicized public disputes that characterize morality politics." What many scholars consider the exact opposite of morality politics is what sexual minorities used in this case: "the time-tested interest group tactic of discrete lobbying of sympathetic policymakers," because, "if the scope of the conflict can be limited, then such decisions can be made in relative obscurity."

All-in-all, it's going to take both grassroots, interpersonal approaches and interest group lobbying to achieve full equality in the US. And some people, like me, may have to reconcile their desire for equality with arguments that elites are ignoring and subverting the will of the people and some people's conceptualizations of democracy. And these arguments are sure to come up again, now that California's Attorney General Jerry Brown is pushing for the repeal of Prop. 8, something he said he wouldn't do originally, saying: "upon further reflection and a deeper probing into all the aspects of our Constitution . . . it became evident that the Article 1 provision guaranteeing basic liberty, which includes the right to marry, took precedence over the initiative . . . based on my duty to defend the law and the entire Constitution, I concluded the court should protect the right to marry even in the face of the 52 percent vote."

So, am I the only one who thinks about these things (it's totally possible, I admit)? How do you respond to arguments about "the will of the people" and gay rights?