DN Editorial: March in place?

A FEW DAYS before its 50th anniversary, we think of the March on Washington, and the civil-rights movement that it embodied, as a triumph of democracy. In the grand sense, this is true. Protest is by no means exclusive to democracies, but it's more at home in a democratic system than any other. The civil-rights movement extended the promise of democracy to many who had been denied it.

But there were also aspects of the movement's victories that could be spun as undemocratic. Many Southern whites decried the Civil Rights Act of 1964 as an imposition of external values on the majorities of residents in their states (the internal value they were protecting, of course, was the right to discriminate). Before that, the civil-rights movement benefited from the even-less-democratic involvement of the Supreme Court, which paved the way for the progress of the 1960s with decisions like Brown v. Board of Education, in 1954, which declared separate-but-equal school segregation unconstitutional, and Browder v. Gayle, in 1956, which did the same for public buses.

Today, as we continue to have a similar argument about protecting minorities from discrimination, in some quarters there are arguments about whether certain minorities even exist. At an event in Montana earlier this week, Supreme Court Justice Antonin Scalia made this mind-bending remark: "It's not up to the courts to invent new minorities that get special protections." The court, he said, has been taking steps that should be left in the hands of voters or Congress.

Scalia was presumably referring to the Court's decision this summer striking down the federal Defense of Marriage Act (DOMA), which had defined marriage as being between a man and a woman. Scalia dissented. Like so many defenders of discrimination over the years, he just had a problem with the process - he thought the court was overstepping its bounds.

Let's quickly address the ridiculousness of this specific comment: Minorities are not "invented" - they either exist or they don't, and they either face discrimination or they don't. Gay and lesbian people existed before the Supreme Court decided that they deserved to be protected from discrimination by their government.

That much should be obvious, and probably is to most people. More insidious is the argument that the courts should not offer protections to minorities unless a majority of voters in a state wants it to do so.

This is going to come up, as Scalia predicted in his DOMA dissent, in the challenges to state same-sex marriage bans that are underway around the country, including here in Pennsylvania. Defenders of the bans will argue that elite judges should not tell the voters of state X how to define marriage in their state's borders.

It's true that this is not an ideal situation. We'd rather see the states end their discriminatory practices themselves, or failing that, Congress act to end them. But one legacy of the civil-rights movement is the idea that a just society does not wait around for public opinion to change before granting basic human dignity to all its citizens. Fifty years from now, in discussions about same-sex marriage, this will seem obvious.