For the proponents of civil liberties and human rights around the world who don’t know yet, in the US elections held last night, California, Arizona and Florida voted to impose measures that ban homosexual unions thus repealing past statutes that legalised the same. This comes as a great blow to same-sex rights workers and liberal free-society proponents and some flags were reported to be at half-mast to mark the moment.

A few years ago in Lawrence v. Texas, the United States Supreme Court categorically stated that homosexuality and homosexual unions were constitutional thus giving a chance for some states to pass laws recognising homosexual marriages. California started this process in May and more than 16,000 unions have taken place since. It is hoped that these marriages would remain intact during this interim period. In Arizona, the state constitution has been amended thus putting a constitutional ban on the issue.

This issue has a great impact on jurisprudence. Bradley Miller uses Ronald Dworkin to criticize what is called the rights-policy debate and the majoritarian view. The idea is that even if the majority has a will and choice on a particular issue, the rights of the minorities and individuals cannot be compromised. Dworkin argued that that rights must be understood as extremely important moral concerns, and cannot be outweighed merely because a majority would be better off by violating the rights of an individual. Rights need extremely strong protection because they are necessary for the dignity and equal respect of individuals, especially when those individuals form a minority within a society. Miller then uses it to state that public policy and the majoritarian view cannot be used as a justification to violate and abrogate the rights of the individual. Both the authors put forth the idea that legislative decisions are “compromised”, based on the competing interests and “the weight of the numbers or the balance of political influence” and constitutional decisions cannot be equated in this manner. There is an inherent aspect of morality involved that must be respected by all and adjudged by an independent authority; the Courts for instance.

The brief theoretical view that I have put forth above fits here because the California vote for instance was won by a mere 52 % which evidently is not that decisive a decision by the population. As a result a large section of the minority population would have to suffer. Whether this matter would again go to Court to be decided or not is all dependent on the government’s decision on whether to respect this absurd political choice or not.

References;

1) New York Times article on the issue

2) Prof. Bradley Miller’s article “Justifications and Rights limitations” at SSRN


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