A Stitch in Haste

George Will recently had a column critiquing the nationwide 21 drinking age:

18-year-olds have a right to marry, adopt children, serve as legal guardians for minors and purchase firearms from authorized dealers, and are trusted with the vote and military responsibilities. So ... it is not unreasonable to think that they can, with proper preparation, be trusted to drink.

Nothing new there -- although the proposal that 18- to 20-year olds could, after completing appropriate classroom instruction, obtain "drinking permits" akin to automotive learner's permits is new (and sensible) to me.

The illogical and heavy-handed federalization (via highway funds) of drinking age laws serves as a classic libertarian poster child for the nanny state and the warm-fuzzy-feeling elevation of political expediency over rational statecraft. It's also a great recruitment tool to initiate discussions with young people about libertarianism in particular and politics in general. Again, nothing new there.

I on the other hand like to use the federalized drinking age in another way: as an example of how insular minorities suffer under majoritarianism.

The group "18-, 19- and 20-year olds" are fully participating members of our democracy; they have as much access to the political process as anyone else. There are rich 18-year olds, there are educated 19-year olds, there are well-connected 20-year olds.

Yet the group as a whole is and will always be a political minority. They will always be at the mercy of the majority. If the majority acts in a fair, enlightened manner, then of course the group has little to fear.

But that's a mighty big "if."

Which is precisely why unbridled majoritarianism -- "democracy" -- fails groups such as "18-, 19- and 20-year olds." And which is precisely why the admittedly "undemocratic" but no less enlightened check-and-balance of judicial review -- "activist judges" -- is so vital in a society that seeks to be pluralistic, just and free.

Of course, there's an added twist to the specific example of the federalized drinking age: people aren't 18-20 forever. They graduate out of the insular minority. That mitigates the failure of majoritarianism, but it doesn't eliminate it. "You'll be 21 someday..." is not a legitimate response to irrational age-based discrimination.

Now imagine how much worse the inequity is when an individual is permanently part of the insular minority. Imagine how unjust the federalized drinking age would be if some people were 20 forever. In such a world, the failure of majoritarianism, the injustice of irrational discrimination, is neither temporary nor insignificant.

Such is the struggle for gay rights.

Gays are the last unvindicated insular minority. The last group to be casually and insolently dismissed with a curt wave of the populist hand. "The people have spoken." "The will of the majority." "The democratic process in action." Ignorant bromide after ignorant bromide.

This is precisely what judges are supposed to prevent. If nothing else, if no other individual right is to be protected, if government is to be in no other way curtailed, judges are at least to do this much: protect insular minorities from the tyranny of the majority --

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments[.]
...
Nor need we enquire whether similar considerations enter into the review of statues directed at particular religious...or national...or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry[.]

That's from the "most famous footnote in history" -- Footnote Four from U.S. v. Carolene Products, 304 U.S. 144 (1938).

Libertarians tend not to like Carolene Products, because it was one of a number of "nails in the coffin" regarding judicial non-review of economic regulation. Still, Footnote Four can be viewed as a "half-full, half-empty" redemption. "No matter how much we judges emasculate ourselves, there are some lines we simply cannot let the legislature cross. We must, if nothing else, remain the last, best defenders of insular minorities."

Except for gays.

On questions of gay rights, especially same-sex marriage, court after court has cowered at the roar of the masses. When it comes to protecting fair, rational and equal treatment for gays, even Footnote Four seems dead.

The new mantra is not "judicial review" but "judicial deference." Not "checks and balances" but "check for legislative intent." Not "equal protection" but "equal abdication."

Will it always be thus? Hopefully not. Probably not. Gays will always be a political minority, but "gay friendlies" will not. Eventually there will be sufficiently large constituencies of disgust at anti-gay bigotry that either legislatures will accommodate them, or judges will be unable to ignore them.

That sort of "trickle up" victory is of course small consolation and wholly unacceptable. But for now it's all gays are going to get.