“Take it to the people!”
That’s the rallying cry du jour of those who oppose marriage equality. And it has a certain, superficial appeal: Given the importance of the issue, doesn’t it make sense to let the whole population decide rather than the legislature?
So argues New Jersey Governor Chris Christie, who wasted little time delivering his promised veto of a marriage equality bill that the legislature comfortably passed. Most readers will recall his infamous statement that African-Americans would have liked to have avoided those pesky civil rights struggles by having their legal status put to a popular vote. Well, a few folks not-quite politely suggested that approach might not have gone so well. So Christie did a clumsy, two-step back pedal (first claiming that blacks would have liked the option of having their rights placed on the ballot, and then caving completely and taking it all back).
But the whole dust-up pinpoints the problem with his approach: We don’t put civil rights on the ballot, because the majority has its own interests and prejudices, and can’t be counted on to do what in hindsight is obviously the right thing. That’s sometimes true of legislatures, too – after all, they voted in the Jim Crow laws – but at least there’s reason to hope that our democratically elected representatives will take the longer view. I could go into some political theory about representative democracy here, but it’s not my job to educate the good governor. One lesson from New Jersey itself suffices: In 1915, Garden State voters were asked whether women should be allowed to join the men in the exercise of the franchise.
Their answer? No.
The Nineteenth Amendment, which finally gave women the right to vote, and ratified by state legislatures just five years later, was needed to fix what New Jersey voters would not. Really, need any more be said?
Except for rare slip-ups like Christie’s, you won’t hear the anti-equality brigade mentioning these inconvenient historical facts, though. The “let the people decide” narrative is compelling – except when it isn’t. Thus, in New Hampshire they’re pressuring the legislature to roll back marriage equality because they know the voters aren’t likely to turn back time. (A Republican-sponsored measure to send the voters a constitutional amendment stealing gay couples’ right to marry was quietly shelved.) And let’s not forget that, just a few years ago, the cry was that marriage equality was being foisted on a helpless populace by evil, anti-democratic courts. So democracy was OK until they stopped getting the results they wanted. Now it’s all about direct democracy. It’s really all about opportunism.
So far, this is working – notably, with Proposition 8. And that was followed by the Maine voters’ decision in 2009 to roll back the marriage equality bill approved by that state’s legislature. The same efforts are likely in Maryland and Washington this year: the anti-equality forces should be able to gather enough signatures to place referenda on the ballot that would repeal marriage equality laws that have already passed (Washington) or soon will (Maryland).
Polls in both states suggest the strategy will fail, and that voters will decide to retain the marriage equality laws. I’m not so sure. The recent history of these measures suggests that favorable poll numbers don’t always translate into victory in these cases. Some think that people are reluctant to tell pollsters their plan to vote down their fellow citizens’ equality. They should be.
I hope I’m wrong, and my guess is that we’ll win at least one of these two fights. If we do, or when we win a popular vote in some other state, the last argument about how marriage equality is being rammed through by a group of elite activists will have been defeated. I’m sure the National Organization for Marriage and like-minded groups are already working on the next set of talking points.
Christie, though, isn’t NOM. He wants to be seen as a reasonable, moderate Republican (which, on some issues, he is). So his veto message was very chatty: Change this to civil unions and then I’ll create an ombudsman to solve the many problems that same-sex couples have encountered in trying to get public and private actors to treat their relationships the same as marriage.
Got all that? I might suggest, instead, that the simplest solution would be to call the relationships marriages. No other relationship will ever carry the same status. Why do you think they created civil unions in the first place?
A quick bit of recent historical context: In the 2006 case, Lewis v. Harris, the New Jersey Supreme Court instructed the legislature to find a way of granting same-sex couples legal equality. But the court, following the example set by the Vermont Supreme Court in 1999, gave the lawmakers an easy out by saying that, well, they didn’t have to call this equality “marriage.” Both state legislatures took the life raft and crafted the civil union compromise – a doomed effort to give same-sex couples all the rights, obligations, and responsibilities of marriage while withholding the name.
By 2009, a decade of experimenting with the civil union had convinced the Vermont legislature that only full marriage equality would suffice, and they passed the bill into law – over the governor’s veto. It’s time for the New Jersey lawmakers to do the same. Whatever individual legislators think about marriage equality, it’s by now clear that they haven’t created the equality that the court was (naively) hoping they would. The only way to carry out the court’s mandate is by defying Gov. Christie’s obfuscating call for an ombudsman and doing what equality demands. If they won’t do it, there’s a case working its way through the state courts that will order them to.
Why not do the right thing now?
Were he born 10,000 years ago, John Culhane would not have survived to adulthood; he has no useful, practical skills. He is a law professor who writes about various and sundry topics, including: disaster compensation; tort law; public health law; literature; science; sports; his own personal life (when he can bear the humanity); and, especially, LGBT rights and issues. He teaches at the Widener University School of Law and is a Senior Fellow at the Thomas Jefferson School of Population Health.
He is also a contributor to Slate Magazine, and writes his own eclectic blog. You can follow him on Facebook and Twitter if you’re blessed with lots of time.
John Culhane lives in the Powelton Village area of Philadelphia with his partner David and their twin daughters, Courtnee and Alexa. Each month, he awaits the third Saturday evening for the neighborhood Wine Club gathering.
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