11.04.09

Get Gay Marriage Off the Ballot

The Maine gay-marriage initiative went down to defeat Tuesday. But the real tragedy is that it should never have been put to a vote in the first place.

I had hoped gay marriage would win out in Maine. I even gave them a little money (thank you to gay friends for a dinner). So when it lost, I was sorry that the crucial percentage of the Maine voters saw fit to weigh in against their fellow citizens’ ability to conduct their most intimate and meaningful human relationships on a level playing field with everyone else in the state.

But winning or losing makes no difference to the real question: what in the world was this issue doing in a referendum anyway? Isn’t this exactly the kind of thing that James Madison invented the life-tenured federal judiciary to decide?

Isn’t this exactly the kind of thing that James Madison invented the life-tenured federal judiciary to decide?

Recently, a bunch of legal scholars and influential commentators representing themselves as liberals, have suggested that it’s not. The federal courts should just bow out, they say, of deciding things like gay marriage (and abortion rights). (Little-known fact: the Bow Out movement started with a suggestion that the Supreme Court had made a mistake when it integrated the schools. Imagine what the law would look like if the Brown court had waited until a majority of states were ready to pass the Civil Rights Acts.) Painful as it is to them, as sincere supporters of abortion rights/gay marriage/your issue here, these wise ones think the federal courts should follow the election returns. Only when a majority of states have legalized something should the federal courts find that it was a fundamental constitutional right all along.

Look at the damage, the law professors say, from the Court’s “premature” decision to protect women’s right to abortion in 1973. Why, bands of protesters are still showing up at the Supreme Court building with pictures of fetuses. How much better it would have been, they argue, to fight these grinding, state- by-state battles to protect women’s choices, than to have legal abortion protected as a matter of equality and privacy for 36 years.

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What these academic treatises ignore is the concern that Madison and others had that what they called the tyranny of the majority was legitimate. A majority, Madison predicted, often whipped up by demagogues, would oppress a helpless minority, a group so naturally small it could never hope to protect itself at the polls alone—using the government to deprive them of those aspects of life fundamental to a free society. No kidding.

The Framers set up systems to protect the minority–legislators would come from different constituencies, voters selecting representatives would have different issues before them when they voted, laws would require the executive to sign off, too. The Framers wrote down a list of rights, like freedom of assembly and religion, which could not be bargained away by any legislature. Soon after the founding, the federal courts took on the constitutional role of saying what that document required. After the Civil War, the Constitutional scheme was expanded to require equality before the law and to apply to the states specifically. The constitutions of the states modeled the state governments roughly along the lines of the federal example, including an independent judiciary to enforce the state constitution.

When confronted with gay marriage, a record number of states, red and blue, stood that carefully constructed system on its head. In the Maine gay marriage campaign, the popularly elected branches were invoked, when, in a matter of great human importance and intimacy, gay marriage should have been a matter of fundamental rights for the courts from the beginning. The odds did not look good from the outset: although three states have extended marriage to same sex couples by legislation, twenty-seven have banned it. However, protected by their terms and the presence of other issues in most elections, the Maine legislators took the electoral chance of enacting gay marriage. At that point, one might conclude, the Madisonian system was working pretty well.

Unsatisfied with this product of representative government, Maine law then allowed the reconsideration of the legislative decision by plebiscite, where people just go to the polls and vote on the one oppressive opportunity themselves, rather than electing representatives with many interests to balance. Unmodified by the diversity of interests, they got to vote on their litmus test issue alone.

Although Maine was the first to reconsider a legislative outcome by veto referendum, twenty-six states have amended their constitutions to forbid same sex marriage, or other unions. Most of those initiatives never even saw the legislature, being started by petitions directly. At this point, Maine has joined the many other communities that have taken the opportunity to prove the wisdom of Madison’s scheme.

That gay marriage has to run this gauntlet is not an accident. Before the Bow Out movement, most big social change claims made their way to the federal courts without this huge windup of state-by-state legislative efforts, which then alerted the opposition to the social change that was coming. More importantly, a thoroughly organized, heavily funded conservative movement is now securely ensconced on the political stage and has seen its tyrannical opportunity in the majoritarian vehicle of the referendum. The combination has pulled the American political system in a radical new direction the Founders actively opposed.

The Supreme Court has yet to rule that gay marriage is either a matter of fundamental right or simple equality. They will have a chance to do that, as the various lawsuits generated by this constitutionally repulsive procedure make their way up in the next few years. But one thing the experience with same sex marriage should make clear. Whether we like the outcome or not, the last thing the court should do, in deciding that question, is follow the election returns.

Linda Hirshman is a retired professor of philosophy. She is the author of Get to Work: A Manifesto for Women of the World, and a columnist at DoubleX.com. She is writing a book about the gay revolution.