The Issues:
Marriage Equality
The countermajoritarian nature of the Maryland Constitution
By Dan Friedman
Special to The Daily Record
March 3, 2006
I've been thinking a lot about the appropriate role of constitutions in protecting minority rights in a democracy. Should our constitution be amended to reflect popular will, or was the constitution intended as a countermajoritarian check on majorities? Of particular interest to me, of course, is whether the answer is the same or different if we are talking about the state or federal constitution.
The occasion for these thoughts is the debate in Annapolis regarding gay marriage. To recount the history briefly, a Maryland law enacted in 1973 prohibited gay marriage. A lawsuit was filed challenging this statutory prohibition as unconstitutional under Article 46 of the Maryland Declaration of Rights, which provides that "[e]quality of rights under the law shall not be abridged or denied because of sex." In an opinion issued on Jan. 20, Judge M. Brooke Murdock of the Circuit Court for Baltimore City found the law unconstitutional. That decision is currently on appeal. Opponents of gay marriage in the General Assembly proposed a series of constitutional amendments that would each have the effect of adding a ban on gay marriage to the state constitution. Such an amendment would have the effect of overturning Judge Murdock's decision and keeping the marriage ban. At this writing, those proposed constitutional amendments appear to have been defeated in various legislative committees and will not come to a floor vote. As a result, the proposed amendment will probably not appear on your ballot in the fall.
In an article published in The Baltimore Sun on Feb. 15, Peter Sprigg asked "Who's afraid of a marriage vote?" The thrust of Sprigg's article was that the parliamentary efforts to keep the proposed amendment off the ballot were antidemocratic, and thus, wrong. Sprigg concludes his fiery article:
Contrary to popular belief, marriage is not a divisive issue. There are few issues that unite Marylanders, and Americans, as much as a belief that marriage is the union of one man and one woman. There will be plenty of time for other debates about the rights and/or privileges of homosexuals. People know what "marriage" is, and they have the right to make their voices heard on this issue at the polls.
This article is not the place to express my personal disagreement with Mr. Sprigg's underlying position on gay marriage. I am more interested, at least for present purposes, in Mr. Sprigg's assertion that the citizens have a democratic "right" to vote on a constitutional amendment that would limit the rights of the gay minority. For purposes of this analysis, I assume that Mr. Sprigg is correct in his assertion that a majority of Maryland voters would vote in favor of a constitutional amendment prohibiting gay marriage. The question here is whether they have the democratic "right" to do so.
The idea of a written constitution is inherently countermajoritarian. (I'd call it more "republican" if the irony in this context wasn't so distracting.) To the extent that a constitution is difficult to amend, it insulates the enumerated values from the passions of the moment. As professor Erwin Chemerinsky describes it "the framers chose to create their government in a Constitution deliberately made difficult to change as a way of preventing tyranny of the majority, of protecting the rights of the minority from oppression by social majorities." There are numerous examples in our federal constitutional tradition that affirm this countermajoritarianism. James Madison argued in Federalist No. 10 that the very size and diversity of the American democracy would help prevent permanent minorities. The so-called "Great Compromise" at the Philadelphia constitutional convention enshrined the protection of small-state minorities from large-state tyranny. The decision in Marbury v. Madison recognized the notion of judicial review, in effect, the power of the courts to overturn popularly adopted legislation as unconstitutional. The 14th Amendment's equal protection clause helps ensure that the rights of minorities (particularly the "discrete and insular" minorities in federal equal protection jurisprudence) can't be trampled by popular legislation approved by legislative majorities. Finally, the difficult amendment process in Article 5 of the U.S. Constitution, requiring either a legislative supermajority (66.7 percent of each house of Congress) or a geographic supermajority (75 percent of all state legislatures), helps ensure that the U.S. Constitution cannot be amended to restrict minority rights.
The Maryland Constitution is different. The current Maryland Constitution was adopted in 1867, immediately after the Civil War, and its drafters were not particularly interested in minority rights, either those of shifting legislative minorities or of the "discrete and insular" varieties of race, ethnicity and religion. In fact, the drafters of the 1867 constitution were interested in restoring majority prerogatives both over political minorities and over the African-American minority. First, the 1867 constitution repealed the "iron-clad oaths," required by elections officials to ferret out Confederate sympathizers, which had the effect of disenfranchising a majority of Maryland voters and turning the minority Republican Party into the political majority. Second, to the extent possible, the 1867 constitution attempted to undermine the emancipation of African-American slaves that had been created in the 1864 constitution. The subsequent history of the state constitution is also more populist. The proposed Maryland Constitution of 1967-1968 was defeated, in significant part, because of a provision that would have banned racial discrimination. Remarkably, the last overtly racist provision of the Maryland Constitution (which based the size of Maryland's counties on the number of white residents) wasn't removed until 1976. The Maryland Constitution is also easier to amend than the U.S. Constitution, requiring a smaller majority of the proposing legislature (60 percent of each house) and a bare majority of the voters casting votes in the state. In fact, the Maryland Constitution has been extensively amended over its 130 years (although there is an argument to be made that while most of the amendments have been structural, those concerning minority rights have been prospective rather than restrictive). Each of these facts suggests that the Maryland Constitution is more receptive to popular majorities and less countermajoritarian than is the U.S. Constitution.
And what has any of this to do with what is happening in Annapolis? The Maryland Constitution does not establish a government by plebiscite that gives a majority of voters the right to amend the constitution at will. The citizens of Maryland, through our constitution, have established a constitutional system that gives the voters the right to vote on constitutional amendments only if a proposed amendment survives the legislative process and procedure – including the winnowing machinery of the committee system that Mr. Sprigg disparages – and also obtains a supermajority (60 percent) of the elected members of each house of the legislature. These are the state constitutional protections established to protect a minority – gay, black, Republican or green – from the tyranny of an ordinary legislative majority. These state constitutional protections are less countermajoritarian than their counterparts in the U.S. Constitution, but are important protections nonetheless. Thus, to answer Mr. Sprigg's question, the Maryland Constitution itself is afraid of a marriage vote.
Dan Friedman is an attorney with Saul Ewing LLP in Baltimore, Maryland. Mr. Friedman's book, "The Maryland State Constitution: A Reference Guide," was published by Greenwood Press on Nov. 30, 2005. The views expressed herein are his own.
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