The democratic repeal of Proposition 8

Last week Judge Walker struck down Proposition 8. This was passed by referendum in California in 2008 and would ban gay marriage in California.

On the left, Owen reflects the consensus in saying that this is the “judiciary overriding the democratically expressed will of the people” and calls the decision “unambiguously anti-democratic.” From the right, Gerald Warner of the Telegraph seems almost apoplectic with rage over undemocratic Judicial Activism.

However, I am unconvinced that the overturn of Prop8 is anathema to democracy. There are a number of ways of characterising democracy. Usually this is simply described as the will of the majority but I am not happy with this description.

Democracy can take many forms and each form can only exist within a given set of institutions. Many of these institutions are not compatible with simple majority rule, but as these institutions are foundational for Democracy it is not credible to call them undemocratic. [1]

On a practical level, the referendum which passed Prop 8 took place under the pre-existing rules of the Californian Constitution. In order to get Prop 8 onto to the ballot paper those backing it had to pay a $200 submission fee and collect signatures from 5% of the number of people who voted in the most recent election for governor.

Proposition 8 does not have weight as a Democratic decision because a majority support it, but because a majority supported it within the rules prescribed by the institutions of Californian democracy. Football is not just a game which involves men kicking a ball, there are rules. When a goal keeper picks up the ball we do not say that it is anti-football, it is part of the rules which people have agreed to abide by.

I am already on the record saying that for majority decisions to be democratic all those involved must be formally and informally, morally and legally, equal members of their polity. When citizens are discriminated against for who they are rather than what they have done, even if this is what the majority want, it is not democratic.

The reasoning behind Prop 8 was that Gay people were inherently worse than straight people and didn’t deserve equal rights. That is an undemocratic position because it vitiates a fundamental institution of Democracy. Timmy says that liberty should trump democracy, but it is equality which this judgement reinforces, not liberty, and without equality [2] there can be no Democracy.

In short, Prop 8 threatened the equal treatment of the citizens of California and its overturn has strengthened Democracy in that state.

There are many forms which democracy can take, and a simplistic formulae which labels any deviation from majority rule undemocratic does a disservice to democracy as an ideal or phenomenon.


This became quite the sizeable aside, so I’ve committed it to a mere footnote, you should still read it though.

[1] First of all, I am annoyed that Democracy is so often solely associated with majority rule.Its amazing this is the common view of democracy since we live in a Representative Democracy, we vote people to make decisions for us, we don’t vote for policy. There are many, probably better, systems of Democracy.

For all its manifold deficiencies Athenian Democracy had many attractive qualities, lawmakers were often chosen by lot (and replaced at regular intervals) so that regular citizens rather than career politicians had the reins of power. Sortition is good enough for enforcing laws, it is a pity it is not used more often for making laws.

Moreover, at a fundamental level Democracy has never ever been about majority decisions. It has always been about a majority within a given polity, for example those from abroad are never included. Were a referendum to be held tomorrow, the world’s borders would melt away.

Of course then we come to economics. Democratic control of a citizen’s bedroom habits is often treated as a legitimate whereas democratic control of the means of production is given short shrift.

[2] Note please that I am not referring to material equality.


3 thoughts on “The democratic repeal of Proposition 8

  1. “Democratic control of a citizen’s bedroom habits is often treated as a legitimate whereas democratic control of the means of production is given short shrift.”

    Which is where us liberals come in of course, insisting that control of neither by the mob is just and righteous.

    As to equality….sure, equality before the law. And there have been enough examples of “democracy” quite happily violating that to make democracy not quite the thing we should be striving for, but liberty.

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