Why Same-Sex Marriage Should Not Be Decided By Popular Vote

The federal trial in San Francisco to determine the Constitutionality of Proposition 8, which bans same-sex marriage in California, is one of the most important civil rights cases this country has witnessed.  The case, Perry Vs. Schwarzenegger, could be appealed up to the U.S. Supreme Court, and the outcome will  have major repercussons for the future of gays and lesbians to marry, not to mention additional ammunition in the culture wars.

Many don't agree that this is a civil-rights case.  They argue that homosexuality is a behavior, and not a race to be protected.  (I would argue that being gay is an inherent trait that is subject to discrimination; most religious practices, which ARE behavioral, are still protected.) They argue that "traditional"  marriage goes back thousands of years.  Yet, a study of the origins and history of marriage shows that  the current system and rationale for marriage, as we now know it, has existed for a realtively short period of time, at most 200 years.  They will use religious arguments to proclaim the sanctity of the institution of marriage; but in our society, it is the secular, "civil" ceremony that is all that is necessary for a marriage to be legally recognized, regardless if there is a religious ceremony.

Finally, many will argue that if civil unions provide the same legal protections as marriage, why quibble over the terminology.  Why indeed?   Why not use the term "civil union" to define an interracial monogomous life-partnership?  It's all the same, right?

I believe that same-sex marriage in this country should not be decided by popular vote.

Our founders, especially James Madison, understood "the tyrrany of the majority", and the problems inherent in creating public policy strictly through a popular vote  based on fear and misinformation that would oppress minority rights.

In the fascinating book, "The Irony of Democracy", Thomas R. Dye and Harmon Ziegler examine voter behavior on over 70 civil rights cases.   They found that in state after state in which civil rights issues have come up for popular vote, the restrictive, anti civil-rights side almost always wins.  One study of 74 state referenda votes on civil rights issues revealed anti-minority victories on over three-quarters of the votes.  The issues included public housing accommodation for minorities, school desegregation, English-only laws, and protection for AIDS victims.

The founders understood the special difficulty of allowing popular voting on policy issues among large and far-reaching populations.  One concern of their day was that, lacking a timely form of mass media, the electorate was relatively uniformed.  It's unfortunate that even today with pervasive information at the disposal of the average voter,  large portions of the electorate are politically uninformed, have no real opinions on policy issues, and vote inconsistently.

It is clear that people DO have opinions on the same-sex marriage issue. But are these based on fear, superstition, and misinformation? Consider other civil rights that were decided in the courts and not in the polls.  Would states still allow segregation in schools and public facilities if the Civil Rights Act of the 1960's were put up for a vote?  Would it have made any sense to vote on these issues state by state?  How about interacial marriage?  Just a few decades ago, this was also illigal in many states.  Would the right of women to vote be recognized today if a male-only electorate had its say through the ballot boxes of yesterday? 

I maintain that no case has been, or could be made, that same-sex marriage in any way threatens "traditional" marriage, or our society at large. It will do no inherent harm to children; the marriages of child- and spouse-abusers, and those who abuse alcohol and drugs, are much more harmful to children.  Time and again it has been shown that children are well cared for by gay couples.  And gay marriage should not challenge one's religious beliefs any more than any other common practice that runs counter to a religious teaching. 

No matter how you look at it, it makes no sense to deny loving same-sex couples the chance to make a life together, and enjoy all of the same rights, as well as the recognition, of full marriage. 

It is time that this issue came to the forefront.  True, it is risky. If the Supreme Court should vote with Prop. 8, it will mean seismic changes in attitudes toward gay couples, and maybe change the gains that were made, forever.  However, I don't believe it will happen that way.  I believe that reasoned good sense is on our side, as is the example of those states, as well as  European countries, whose civilizations did not collpse due to allowing same-sex marriage.   We need this not only for ourselves and our relationships, but to regain the moral authority to intervene in the protection of gay rights in other nations.  For if we can't guarantee this simple right to our own citizens, how can we insist that a country like Uganda not pass draconian laws against its own gay population? 

Tomorrow, I will look at "A Single Man", both novel and film.  In a big way these are timely works that illustrate the emotional and even physical consequences of society's denial of the real love between human beings who just happen to share a gender.