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The Supreme Court’s latest attempt to destroy republican government comes, this week, under the guise of equality. Gay marriage advocates find themselves before the highest Court, seeking to use the bench to achieve what has eluded them politically. To be successful, they will encourage the Court to overturn the past and empower itself at the expense of the people. Prospects for lovers of liberty through self-government appear grim.

But first, a bit of background. The actual oral arguments involve Hollingsworth v. Perry, which examines the constitutionality of California’s Proposition 8, and United States v. Windsor, which reviews the propriety of the Defense of Marriage Act (DOMA).

In the American regime, marriage has been a state, as opposed to a federal, concern.[1] When Hawaii attempted to change its marriage laws, it spurred Congress into the Defense of Marriage Act (1996). DOMA did two things: it gave states the power to refuse same-sex marriages performed in other states,[2] and it defined uses of “marriage” or “spouse” in the federal code to refer only to opposite sex relationships.

Though its critics will say otherwise, DOMA was a fundamentally democratic law. DOMA allowed states to define marriage on their own and it did nothing to prevent states from recognizing their own same-sex marriages or those from other states. DOMA, as a congressional act, meant the people’s elected officials made a declarative, legislative judgment as to how marriage would be recognized in the federal code.

Since DOMA’s passage, forty-one states have defined marriage as only between a man and a woman, while nine states have allowed same-sex marriage, either by judicial imposition or through legislation. California voters, in 2008, passed a ballot proposition (Prop. 8) that also limited marriage to a relationship between one man and one woman.

The U.S. Constitution’s text and tradition are mostly silent on the issue.[3] This means that marriage has been a political matter, but for marriage to become a constitutional concern, the Court will have to provide a reason why the people’s elected officials are no longer fit to deal with it. While it may seem “wonky,” and the weeds may get deep, HOW the Court justifies this decision makes all the difference within our system of government.

We are built on a fragile balance between minority rights, which must be protected, and the majority’s ability to project beliefs through elected officials so that public policy might reflect, however imperfectly, the people’s desires. This is the nature of self-government within a constitutional republic.

The fragility gives way under the weight of tyranny by either the majority or the minority. During the Civil Rights struggles of the 1890s-1960s, Southern states used government’s power to strip away the political rights of African-Americans. The Supreme Court failed to curtail this clear tyranny by political majorities throughout the region.[4]

During the early 1900s, the Court sharply limited federal and state governments’ ability to regulate labor conditions even though there was no obvious constitutional bar to doing so. By creating and enforcing a near absolute “liberty of contract,” the Court struck down majoritarian efforts to reduce child labor and clean up workplace environments. This was classic tyranny of the minority, when narrow business interests used an acquiescent Court’s power to blunt elected officials and, by extension, the will of the people.[5]

Into this delicate balance strides gay rights advocates, arguing for a “right” to marry as demanded by the U.S. Constitution. If the Supreme Court recognizes such a right, even though there is no obvious constitutional reason why it must do so, we will find ourselves in the middle of another tyranny of the minority, where a fraction of the population leverages its political power and a willing Supreme Court to undermine popular sovereignty. If the people do not govern, then who does?

Hamilton, in Federalist 78, referred to the Court as the “least dangerous branch” of government since it possessed powers of neither the purse nor the sword. It could not be in a position to exert its will. In the gay marriage debate, the Court will be tempted,[6] to empower itself to over-ride the people, and to take on the role of legislature as opposed to interpreter.

This is intolerable. Why? Because, by design, the Court is insulated from political pressure—through lifetime appointments and an indirect confirmation process—and is largely unresponsive to the public. The Court enjoys this status so it can protect minority rights, free from politics. When the Court abuses its power, as it does when it shoves its own will down our democratic gullets, we are bereft of options.

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So far, I have assumed that gay marriage advocates have no effective arguments to make before the Court. Obviously, if there is a clear constitutional violation involved with either DOMA or Prop 8, the previous discussion becomes moot. My assumption is based on the fact that the Constitution does not speak to this issue—either textually or historically. If this was all that mattered the case would be closed. With the Court’s recent history, this is not all that matters. There are at least two branches of arguments that gay marriage advocates will use before the Court.

Equal Protection

First, advocates will claim the Constitution requires “equal protection of the laws” for all citizens,[7] and this standard should force governments to treat citizens the same when benefits are extended or status is recognized.

While possibly convincing at an emotional level, only with a superficial reading could “equal protection” facially demand marriage equality for homosexual couples. Most laws are discriminatory on some basis. Progressive tax rates discriminate against the wealthy, while mandatory retirement requirements for police officers discriminate on the basis of age. The better question is when can government permissibly discriminate and stay compliant with the clause?

Usually, government must show a “rational basis” for the discrimination. As long as there is a rational relationship between the policy’s means and stated ends, the law will be constitutional. Overwhelmingly, governments clear this legal hurdle. Interestingly, and maybe predictably, the Court did strike down a Colorado constitutional amendment that tried to remove special legal protections for homosexuals, ruling the populace was motivated not by reason, but animus.[8] Note that the Court’s reasoning was that legislation of this sort based on the moral views of the population are not reasonable. While problematic on several levels, I will not be surprised to see a similar finding for California’s Proposition 8.

Not all discriminatory laws, however, fall under this level of review. The Court uses “strict scrutiny” when reviewing laws that target constitutionally protected groups and/or create “suspect classifications.” These groups merit such protection because they have carved out exceptions as defined by the Constitution’s text. Government cannot discriminate on the basis of religion, for example, unless it can show a “compelling interest.” Though unlikely, it is possible for laws to survive this kind of “strict scrutiny.”[9]

The Court has also allowed for other groups to be similarly protected, so long as they are “discrete and insular minorities.”[10] In general terms, groups qualify for such status if they are 1) defined by an immutable characteristic, 2) can show a history of discrimination, and 3) are politically powerless. Again, government can discriminate against such groups so long as it can show a “compelling interest.”

Gay rights advocates can indeed show a history of discrimination, but the other requirements are much more difficult to sustain. The immutability requirement is more complex genetically, and probably outside a reasonable Court’s expertise to determine. Even if the Court is convinced on immutability, advocates must still show an absence of political clout. If anything, the homosexual community’s political influence far outweighs its actual numbers. There is little reason to believe it is isolated and is being denied access to political decision-makers. The past decade indicates the gay rights lobby has been quite successful.

The Court has been unwilling to expand the number of “suspect classifications” it is willing to protect through the equal protection clause. When given the opportunity to include homosexuals within these protection schemes, the Court has refused to do so. This seems an unlikely path for the Court to follow.[11]

Enhanced “Liberty”/Privacy

The second set of arguments involves the ever-expanding notion of “liberty” found in the due process clauses of either the Fifth or Fourteenth Amendments. Both clauses allow for deprivations of liberty so long as due process occurs. Think of due process as a set of fair procedures that begin with a law’s adoption and follow it through implementation and judicial application within a court of law.

There are some liberties the Court has deemed “fundamental” or “implicit in the concept of ordered liberty.” These liberties are “rooted in our history and tradition” and to deny them might endanger our governmental process.[12] In theory, no matter if due process is followed, government cannot deny these liberties except in the most unusual of circumstances. In essence, the “substantive liberty” is so cherished that whatever procedure, fair or not, used to take it away, the deprivation is presumed unconstitutional.

Of course we have a list of liberties deemed “fundamental” to the point that we protected them explicitly in the Bill of Rights. Here, the question is whether or not there are unwritten or implied liberties that deserve protection.[13] The right to privacy was crafted out of such reasoning and it gave rise to abortion rights and the right to engage in homosexual acts.[14]

Gay rights advocates argue the ability to choose one’s mate, and to accrue the psychological, social, cultural, legal, and economic benefits that flow from this choice, is such a liberty. The matter is vital, fundamental, and beyond the reach of government.

There is a grain of truth to the argument, but only if our past is distorted. States have allowed citizens to marry essentially whomever they choose. In that sense, the right to marry has been largely respected by our forms of government. However, we have many limitations on our ability to choose a legal mate, and the liberty is not absolute. In some states, first cousins are not allowed to marry (West Virginia), while in others they are (North Carolina). And, of course, historically, our states have universally limited the right to marry to people of the opposite sex. Only recently has this been challenged, and, as discussed above, these efforts have had limited success, with eighty percent of states still defining marriage traditionally.

Again, if the Court chooses to recognize such a liberty interest, and I think it very well could, can government demonstrate a compelling interest in restricting marriage to opposite sex couples? I think that it can. The legislative efforts to protect marriage have been motivated by voters’ moral sentiments. Marriage, so defined, has roots in millennia of experience, so much so that if anything is “rooted in our history and tradition,” it is the definition of marriage that has come to us, to a degree undisturbed, from across the ages.

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In the end, this is an interpretive issue through and through. If a majority of the Court determines that we are governed by the Constitution’s text and history, it will uphold both laws. This protects the political process and it allows our form of government to continue to be of the people, by the people, and for the people. It does not guarantee a future of traditionally defined marriage. Such a ruling would only mean that we, the people, would decide the issue through the ballot box.

If a majority of the Court determines the Constitution is malleable and its meaning is conditioned upon the world that surrounds us, there is no question it will overturn both DOMA and Prop. 8. The culture is indeed evolving on the issue of homosexuality in general and gay marriage in particular, but it is only evolving in certain segments. As defined by the democratic process, voters have overwhelmingly chosen to enshrine marriage as between a man and a woman. If the Court exerts its will against such majorities, it will not be due to a generally evolving culture, but due to a shifting elite, popular, and youth culture where both homosexuality and gay marriage are not merely accepted but celebrated. The gay rights movement has leveraged this cultural currency into a position of power that may be redefining our ideas of politics.

Since Griswold, the Supreme Court has put a high priority on individual sexual choice as both an obstacle to the majority’s will and as a key indicator of personal freedom. What began with a fundamental Right to Privacy that prevented the majority from forbidding contraception, grew into the right to abortion in Roe. As abortion rights became more broadly defined as shorthand for political freedom for women, the Court has become more deferential to sexual rights in other contexts. In Lawrence, the Court recognized a right to engage in consensual homosexual sodomy, and since the culture has shifted so dramatically on the topic, the moment is ripe for the Court to strike down all laws that prevent full, legal recognition of homosexual marriages.

If this is the path of the Court, let us not pretend it is based on the Constitution, nor on evolving standards as expressed through the political process. This will be done based on the Court’s determination that at the end of the day, it knows best. Then, our tyranny of the minority will consist of nine strangers dressed in black who occupy a world beyond our reach.