Chris Gardner  /  AP
Maryland Gov. Ehrlich's gay rights bill veto will be an issue in the 2006 election.
By Tom Curry National affairs writer
updated 5/23/2005 5:08:16 PM ET 2005-05-23T21:08:16

Majority rule is the American way, except for those times when the rules allow the minority to prevail.

Recent events illustrate how often a minority can thwart the will of the majority:

  • On Friday, Maryland Gov. Robert Ehrlich, a Republican up for re-election next year in a heavily Democratic state, vetoed a bill that would have granted rights to same-sex couples akin to those which married heterosexual couples have, including the right to make medical care decisions for incapacitated partners.
  • President Bush pledged Friday he would veto a bill that would provide taxpayer funding for research on embryonic stem cells. The House is likely to approve such a bill this week.
  • In the Senate, the Democratic minority has used the filibuster tactic to prevent votes on 10 of Bush’s judicial nominees. The Senate is poised to vote Tuesday on lowering the number of senators required to stop filibusters of nominees (not of legislation) from 60 to 51.
  • On May 12, federal district judge Joseph Bataillon struck down a constitutional provision enacted by 70 percent of Nebraska voters in 2000 which defined marriage as only between a man and a woman and banned same-sex civil unions.

Whether it is a president, a governor, a judge or a group of senators, those who wield minority power, are often acclaimed as principled heroes standing in the way of a misguided majority, or denounced as tyrants who are depriving the voters of the power to govern themselves.

Retribution against the veto
A president’s or a governor’s power to veto legislation is often the most dramatic expression of minority rule.

There is a check against executives who use the veto. The Democratic-controlled Maryland legislature could muster the three-fifths vote needed to over-ride Ehrlich’s veto of the gay rights bill. The state Senate passed the legislation by a vote of 32 to 15; the House by 82 to 46, with 13 absent or not voting.

And elections offer a chance for retribution: In next year’s campaign, Democrats will use Ehrlich’s veto as an argument for ousting him.

Former New York Gov. Mario Cuomo’s repeated vetoes of death penalty legislation helped contribute to his upset defeat in 1994.

But a veto can sometimes be an executive’s salvation. After the GOP-controlled House passed a bill curbing Medicare’s growth rate in 1995, President Clinton declared, “I will not let you destroy Medicare,” vetoed the bill, and helped revive his political fortunes.

Too much presidential power?
Some of the framers of the Constitution were reluctant to give the president the power to overrule the majority. Connecticut’s Roger Sherman warned at the constitutional convention in 1787, “No one man could be found so far above all the rest in wisdom.”

But Pennsylvania delegate James Wilson said that the president would rarely need to use his veto because Congress “would know that such a power existed, and would refrain from such laws as (the veto) would be sure to defeat. Its silent operation would therefore preserve harmony and prevent mischief.”

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Things haven’t always worked out as Wilson predicted. For example, Wilson's "harmony" wasn't in the air when anti-abortion groups assailed Clinton after he vetoed bills to outlaw a method of abortion known as “partial-birth abortion.”

The bills’ supporters were unable to muster the two-thirds in both House and Senate needed to override Clinton's vetoes.

Eventually, the majority did prevail: once George Bush was elected, Congress passed and Bush signed into law a ban on the practice. That law is being challenged in the federal courts, so its fate likely will rest with the nine justices of the Supreme Court.

Stem-cell research funding
Bush’s threatened veto of the bill providing taxpayer funding of stem-cell research has already sparked denunciations.

Bush’s veto threat shows that “he’s not reflecting the values and hopes of the American people,” Sen. Joseph Lieberman, D-Conn., said Sunday on ABC’s “This Week” program.

Bush says embryonic stem cell research is unethical since it involves destruction of human life. The federal government does fund research involving stem cells from umbilical cord blood, placentas and other non-embryonic sources.

The form of minority rule that has led to this week’s Senate showdown on filibusters of judicial nominees is rule by judges.

Conservatives argue that the Supreme Court’s 1973 Roe v. Wade abortion decision, its 2003 gay rights decision, Lawrence v. Texas, and similar rulings impose profound social policy changes on the American people without their consent.

While Lawrence v. Texas did not legalize same-sex marriage, it provided strong language that helps create the legal predicate for same-sex marriage.

Supreme Court Justice Antonin Scalia spoke for conservatives when he dissented from Lawrence v. Texas, saying that judges should not force their views of gay rights on the American people.

Judgments made by 'a governing caste'
“The premise of our system is that those judgments are to be made by the people, and not imposed by a governing caste that knows best,” Scalia wrote.

Scalia is part of that “governing caste,” the nine justices who decide everything from the death penalty for 17-year olds to the rights of fetuses.

If any of the justices retires next month, conservatives want to ensure that the Democratic minority can’t use the filibuster to stop the Senate from confirming a new justice in the Scalia mold.

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