Rights and Votes, Again

The Irish referendum on same-sex marriage has brought a common trope back into the public discourse: rights should not be subject to voting. There are actually a number of distinct claims that can be advanced under this heading, although they are often run together, as for instance in this piece by Saeed Kamal Dehghan in the Guardian. These claims range from plausible (although far from certain) to outright silly.

The plausible version of the rights-should-not-be-subject-to-voting position is the claim that rights should not be subject to voting in a referendum. (Perhaps this is the view that Mr. Dehghan really wants to advance in his article, although, as I will explain, this is not very clear.) A referendum campaign may indeed be a poor way of debating about rights. The ignorance of much of the electorate ― which of course goes hand in hand with the prevalence of stereotypes, usually unflattering ones, about minorities ― may make it unfit to decide important issues, even assuming that it is fit to choose representatives who eventually decide them. I have some sympathy for this view; I certainly have no desire to live in a direct, rather than a representative, democracy.

That said, even the claim that issues of rights should not settled by popular vote is both under- and over-inclusive. It is under-inclusive because all sorts of other issues should not be settled by popular vote either, for very similar reasons. I would not want income tax rates set in a referendum, for instance. If anything, rights issues may be simpler, and thus more amenable to resolution by way of referendum, than some policy matters. On the other hand, there seems to be something like an international consensus that secession of political communities is a matter that must be settled by referendum, and secession, as the Supreme Court of Canada has rightly pointed out, necessarily has an impact on minority rights. In short, the issue of whether a given topic can be resolved by referendum, and why, is not an easy one, and we must be wary of rushing to conclusions based on nothing more than hunches.

A stronger version of the rights-should-not-be-subject-to-voting position holds that rights should not be subject to any sort of democratic vote, including that of a legislature. Thus Mr. Dehghan quotes Ayn Rand’s assertion that “individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority.” This claim, in my view, is quite clearly wrong. Legislation enacted in the normal course of governance will often affect rights. Must every bill that could conceivably affect someone’s rights be stopped in its tracks so that a court can rule ― in the abstract, without knowing how the bill would be applied in real life ― on the rights issues it raises? France actually has something like that system, but of course even there, it takes a group of (democratically elected) politicians to refer a bill to the Conseil constitutionnel. (A few years, France has authorized the Conseil constitutionnel to also rule on the constitutionality of a statute after its enactment, on reference by a court.)

Now it is certainly possible to argue that courts, rather than legislatures, should have the last word on issues of rights. But the last word isn’t the same thing as exclusive competence. Legislatures can debate and vote on rights ― as they have long done ― and the courts should be available as a last resort, to respond to legislative abuse or inaction. We should not forget that legislatures have done much for rights. In much of the world, including in Canada, it was legislatures that, for instance, created (almost) universal suffrage, decriminalized homosexuality, or abolished the death penalty. All of this involved individual rights being subject to public votes. Were those votes somehow wrong?

And then, there is the paradox that ought really to be embarrassing to the defenders of the claim that rights should not be subject to democratic votes. Judicial review, which they presumably think the proper mechanism for settling issues of rights, is normally itself a creature of a democratic constitution-making process. The rights which it enforces may (or may not) be natural rights, but they are still recognized, expressly or by implication, in constitutional texts enacted through some sort of democratic process.

The strongest version of the rights-should-not-be-subject-to-voting position is the contention that rights should not be subject to any sort of vote at all. I’m not sure whether anybody seriously thinks that, although Mr. Dehghan concludes his article by endorsing Rachel Maddow’s insistence that “[h]ere’s the thing about rights – they’re not actually supposed to be voted on.” There is no qualification here about who isn’t supposed to vote on rights. On its face, this statement applies to judges as well as to voters and legislators. Yet if it really means what it says, this claim is not just wrong, but actually silly. If people are to live together, issues of rights need to be settled somehow. Negotiation is unlikely to be of much assistance, because there are too many individuals affected. Realistically, there are only two options: legislation, or adjudication. And, as Jeremy Waldron points out in a recent essay which I discussed earlier this week, the latter mechanism, no less than the former, ultimately relies on voting.

The dirty little secret of judicial review ― not much of a secret, really, but something that we try not to think about unless prof. Waldron forces us to ― is that it sometimes leaves issues of rights to be settled by a single person’s vote. That person wears an impressive-looking robe to work, but he or she is still only a human being, and not necessarily a human being of superior wisdom or virtue. The idea of the right of Irish gays and lesbians to marry being dependent on the vote of a popular majority may be unsettling. But is the idea of that right of their American fellows being dependent on the vote of a single 78 year-old man of no discernible towering intellectual abilities ought to be unsettling too.

Here’s the thing about rights ― we disagree about them, as about everything else, more or less. It may be that rights are the inalienable endowments bestowed on us by our Creator. But even if that is so, He has not left us a very clear description of just what it is that He gave us. We have to figure it out for ourselves ― and not just individually, but collectively too. Unfortunately, our ability to figure things out is pretty limited. We set up procedures that are supposed to help us do it, but none of these is fail-safe or fool-proof. As unsettling as they may be, they may also be the best we can do, at least at this point in our history.

Égalité, Liberté?

As I was thinking about the application of the liberty interest protected by s. 7 of the Canadian Charter of Rights and Freedoms to the family/marriage context, which I have written about here and here, a question occurred to me: why wasn’t it invoked to argue for the unconstitutionality of denying same-sex couple the opportunity to marry? The question is, of course, academic, since same-sex marriage has now been the law of the land for many years. But I am, after all, a wannabe academic, and find it quite interesting.

Probably the most significant judicial decision on the subject was Halpern v. Canada (Attorney General), 65 OR (3d) 161 (Ontario C.A.); it held that the restriction of marriage to opposite-sex couples was a breach of the equality guarantee of s. 15(1) of the Charter, while rejecting a church’s claim that it was a violation of its freedom of religion. But the s. 7 liberty guarantee was not even raised before the Court. The same was true in Hendricks c. Québec (Procureur général), [2002] R.J.Q. 2506, a decision of the Superior Court of Québec.

Yet the Supreme Court’s jurisprudence recognizes (and already recognized by the time these cases were decided) that “‘liberty’ is engaged where state compulsions or prohibitions affect important and fundamental life choices,” as Justice Bastarache put it, writing for the majority in Blencoe v. British Columbia (Human Rights Commission), 200o SCC 44, [2000] 2 S.C.R. 307, at par. 49. It seems to me that the choice of a spouse is quite obviously a “fundamental life choice,” or, to take up language from Justice Laforest’s concurring opinion in  Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at par. 66, a matter “fundamentally or inherently personal such that, by [its] very nature, [it] implicate[s] basic choices going to the core of what it means to enjoy individual dignity and independence.” And it also seems to me that it would not have been difficult to argue that denying homosexuals this fundamental life choice is arbitrary and therefore not in accordance with principles of fundamental justice ― not more difficult, in any case, than the very similar argument that was made in the context of the equality analysis.

Why, then, did the applicants in Halpern and Hendricks not invoke s. 7? Why, indeed, is the public discourse about same-sex marriage only concerned, so far as I can tell, with equality and not liberty ― why do we talk about marriage equality and not marriage liberty?

I can think of one way to argue that marriage isn’t about liberty at all. It would involve saying that marriage is not something that people do, but merely a package of benefits that they get. In that case, it makes little sense that denying access to it is a breach of a person’s liberty, though if the reason for the denial is discriminatory, it is a breach of equality rights. (Similarly, it would have made no sense for the appellants in Egan v. Canada, [1995] 2 S.C.R. 513, the case in which the Supreme Court first recognized that sexual orientation is a prohibited ground of discrimination under s. 15(1) of the Charter, to argue that the denial to one of them of a spousal allowance because they were in a same-sex rather than opposite-sex relationship was a breach of their liberty.) But I am pretty sure  that neither the advocates nor the opponents of same-sex marriage think about it as a mere package of benefits granted by the state. They see it as something more, something people engage in and not only receive. If so, then restricting it is a breach of people’s liberty.

The only other explanation for the absence of liberty from the same-sex marriage discourse I have come up with is political. Same-sex marriage has been, for the most part, a cause of the “progressive” side of the political spectrum. Its advocates tend to be people who just are more concerned with equality than with liberty ― not just in the matter of marriage, but in most, if not all, of their political views. Equality-based arguments have more appeal to them than those based on liberty. Perhaps. But I doubt that that is all there is to this curious matter, and would be disappointed it were. What am I missing?

All that is not to say that the equality arguments in favour of same-sex marriage are mistaken or unimportant. Discrimination is at the heart of the denial to same-sex couples of the opportunities that their opposite-sex counterparts have always enjoyed. And so far litigation is concerned, there might be no point in invoking an additional argument if one is sure to prevail on another one (though recall that in Halpern, the applicants asserted a religious freedom claim, which in my view was much less plausible than the one based on liberty, and which indeed went nowhere). Still, I find the absence of liberty from the discourse about marriage perplexing, and the same-sex marriage litigation will remain something of a lost opportunity for courts to develop this branch of our constitutional jurisprudence.

Rights and Disagreement

Charles Krauthammer has an interesting op-ed in the Washington Post discussing President Obama’s endorsement of same-sex marriage, and accusing him of taking an intellectually incoherent approach to this matter. Mr. Obama has said that marriage – including of the same-sex variety – is a right; he has also said that the issue of allowing same-sex marriage (or not) should be for each state to decide. Mr. Krauthammer charges that this is contradictory: rights are rights are rights, and if something is a right, then it’s a right everywhere, and not state by state. It is the same argument that Dahlia Lithwick and Sonja West made in an op-ed on Slate (which I criticized here on other grounds). Mr. Krauthammer’s colleague Ruth Marcus also raised this issue a few days ago. It seems like a compelling argument, but it is wrong.

It is fine to say, in the abstract, that if something is a right it is a right everywhere and is not negotiable. (Actually, that too is a very controversial position, but let’s assume it.) The problem, as Jeremy Waldron likes to remind us, is that we don’t have any agreed upon means of verifying, to the satisfaction of everyone, the claim that something is a right, the way we have agreed upon ways of verifying the veracity of a claim made by a scientific theory. Thus even assuming that there exists a truth of the matter regarding rights, we can never be sure that we are, at any given moment, in possession of the truth about a claim of right. We think, of course, that our opinions about rights are correct; but if we are honest with ourselves, we cannot trivialize the possibility that we are mistaken.

We must recognize, therefore, that disagreements about right are can be reasonable. And that means recognizing – a possibility for which Mr. Krauthammer does not allow –  that someone who does not share our views about a certain claim of rights is not, for that reason, a bigot. I suspect that, if we think of the international realm, we mostly share that view. We do not think that every country that does not share our views about rights is bigoted. We might think them wrong, but not immoral. And we do not think that we ought to impose our views on them. We recognize that these are matters over which good faith disagreement is possible, and it is not wrong for each polity to resolve this disagreement as it thinks best – because it just might that they, rather than us, will get at the right answer.

Mr. Obama’s position might simply the application of this line of thinking inside the United States. He thinks that same-sex marriage is a right. But he acknowledges the possibility of good-faith disagreement on the matter (after all he, supposedly, until recently had doubts ), and thinks that this disagreement is best resolved in each state separately. This is not contradictory or incoherent.

There might be one more problem with that position. Where rights are codified in an authoritative document, like the U.S. Constitution, it seems strange to accept that it might mean different things to different people. But we know it does; people disagree about what the Constitution means just like they disagree about the underlying issues of rights. Unless one accepts the Dworkinian “one right answer” view, it need not be particularly troubling that the same document is interpreted differently by different people.

For once, left, right, and centre are united at criticizing Mr. Obama. And the irony is that this criticism is quite unfair.

Rights and Votes

Is it ever ok to put people’s rights to a democratic vote? Dahlia Lithwick and Sonja West are adamant that it is not, as they make clear in an article in Slate on the subject of same-sex marriage. But their argument is wrong, and indeed dangerous.

Ms Lithwick and Ms West argue that “marriage equality … is a constitutional and not a democratic issue.” So is equality generally – as they put it, “[e]quality is not a popularity contest,” – and so are other “essential liberties.” They conclude their article with a reference to slavery – the biggest rhetorical sledgehammer except for Hitler – claiming that “[j]ust as [the U.S.] couldn’t go on with a mix of free states and slave states, we cannot continue with this jumble of equal marriage states and discriminatory states. Recognizing a federal constitutional right is the only, and the best, method to put this issue to rest.”

Ms Lithwick and Ms West might mean that when democratically enacted laws have the effect of defining the scope of citizens’ constitutionally protected rights and liberties, it is legitimate for courts, exercising the power of judicial review of legislation, to overrule these definitions and to impose their own. That would be an argument about what Jeremy Waldron, in his article on “The Core of the Case against Judicial Review” calls “process-related reasons” for choosing a procedure for settling disputes about rights. Prof. Waldron believes  that the democratic, legislative procedure is much the better one, because it respects the views of every citizen on these matters. Ms Lithwick and Ms West think otherwise because of their contemptuous view of democracy as a popularity contest.

But it is not what the argument they actually make. What Ms Lithwick and Ms West say is that issues are either democratic or constitutional – and this implies that rights and liberties are simply outside the purview of the democratic process. This suggests not just that courts are better than legislatures at dealing with disputes about rights, or that they should be called in as a last result to correct legislative failures or oversights, but that legislatures and voters have no business pronouncing on issues defined as constitutional at all.

Contrary to Ms Lithwick and Ms West’s assertion, this is a radical argument. It is also an absurd one. Legislatures and voters engage with arguments about rights all the time – and they don’t always do it badly. Legislatures made same-sex marriage legal in Canada and in some of the states where it is legal in the U.S., including New York. Legislatures decriminalized homosexuality in Canada, the U.K., and much of the U.S. (though courts did end up sweeping the remaining prohibitions there). They abolished the death penalty in Canada, all of Europe, and those U.S. states where it no longer exists. Yet if one accepts that voting is not a legitimate procedure for settling disputes about right, as Ms Lithwick and Ms West contend, then one is committed to saying that all these votes were illegitimate – legislatures had no business addressing these issues at all. And one cannot say that legislation that advances rights is legitimate whereas that which restricts them is not; process-based arguments against a decision-making procedure remain whether or not the outcome is good. If flipping a coin to decide whether same-sex marriage ought to be legal is a bad idea, it remains a bad idea even if the result is one we agree with. Winning a popularity contest has the same moral significance as losing one – that is, none.

And as for the slavery argument, it is deeply ironic and ought to be embarrassing to Ms Lithwick and Ms West. When it confronted the issue of slavery, the Supreme Court of the United States not only upheld this evil, but extended it, holding that a law – enacted by a legislature, the U.S. Congress – prohibiting slavery in the U.S. territories was unconstitutional. This decision, Dred Scott v. Sandford, ought to be a reminder to those who defend judicial review that courts are not immune from doing evil and letting wrong prevail over right.

Unlike prof. Waldron, I think that judicial review has a legitimate place in resolving questions about rights in democratic polities. But so do legislatures – and their engagement with these questions is something to be celebrated, not denigrated. I do hope that same-sex marriage becomes legal everywhere (unless, that is, governments at last get out of the marriage business altogether, which would be even better). And if courts need to step in to make this happen, so be it. But the more involved legislatures are in this progress, the better it will be.