BY AMY STONE
Assistant professor of sociology at Trinity University in San Antonio and author of the forthcoming book Gay Rights at the Ballot Box
In a recent article in The New York Times, “Christie Wants Voters to Decide on Gay Marriage,” New Jersey governor Chris Christie warned that he would veto a bill to legalize same-sex marriage. Indeed, Gov. Christie argues that voters should get to decide on same-sex marriage via a constitutional amendment. Send it to the voters! It’s the ultimate way of getting the public’s input!
This is the logic behind many ballot measures.
But is it right? Is it fair?
In many Western states like Oregon and California, the initiative process that allows citizens to propose new laws was established by Progressive and Populist activists at the turn of the century. The first statewide initiatives in Oregon created a direct primary election (1904) and a recall process for elected officials (1908). These initiatives were an attempt to circumvent corrupt partisan state legislatures and educate voters on social issues. They were an attempt to make legislatures accountable to the general public. And indeed early initiatives were used to pass laws on issues like child welfare, work day length, and prohibition. Since then, voters across the nation have used ballot measures to vote on everything from nuclear freeze to medical marijuana to euthanasia. In states without a direct initiative process, almost all state legislatures can refer initiatives, which is the origin of most same-sex marriage bans that have passed in the United States.
What also arose out of this process is a long history in the United States of voting on the civil rights of “others,” namely others such as illegal immigrants, African Americans, women, and LGBT individuals. In the wake of the Civil War, residents of Georgetown and the city of Washington, D.C., passed a ballot measure, the Black Suffrage Bill, to prevent newly emancipated Blacks from being enfranchised. States across the country have voted away affirmative action. Californians limited the rights of illegal immigrants’ access to public education and health systems in a 1994 initiative. Women made some gains using ballot measures to gain suffrage. However, in the case of LGBT politics, almost 70% of all relevant ballot measures result in a repeal of LGBT rights (or worse, the creation of an anti-gay law). And same-sex marriage rights have never been passed by voters. Frequently, these votes on civil rights are declared unconstitutional by federal and state courts after their passage. However, it is still routine in the United States to use ballot measures to vote on civil rights.
Is it fair to put civil rights to a popular vote?
I think this ignores the intention of civil rights law. Namely, that if civil rights were popular, they wouldn’t be necessary at all. When laws are passed to protect or recognize civil rights, it is usually because those rights are being taken away. You need an anti-bullying law to protect LGBT teens who are harassed by homophobics; you need a Voting Rights Act to protect African Americans in Southern states where their collective power is restricted; and you need protections for the rights of illegal immigrants in the face of public hostility toward them. Many civil rights would not stand up to a popular vote. Indeed one compelling reason for representative democracy is to protect minorities from the “tyranny of the majority.”
There is also the issue that these ballot measures sap resources away from minority communities. In the case of New Jersey, the creation of a campaign to pass a same-sex ballot measure will involve fundraising millions of dollars, marshalling thousands of volunteers, and months of organizing. It could result in a same-sex marriage law in New Jersey. However, it is more likely to result in the passage of a constitutional amendment that prohibits same-sex marriage in New Jersey and can only be repealed by an additional ballot measure.
This is something for Governor Christie to consider. Although the initiative process is used to check the power of the legislature in many states, it is also the responsibility of the legislature to protect minorities from the tyranny of the majority.
Amy Stone is author of Gay Rights at the Ballot Box (March 2012) and assistant professor of sociology at Trinity University in San Antonio.
"Amy L. Stone crafts a compelling, deeply textured portrayal of the more than 200 anti-gay ballot campaigns in the U.S. since 1974. Through interviews with movement leaders and other sources, Stone deftly analyzes the tension between winning campaigns and building a sustainable movement, between national, urban activists and local, rural communities, as well as debates over tactics and messaging. Gay Rights at the Ballot Box is essential reading for anyone seeking to understand the central, disturbing role anti-gay politics has played in contemporary U.S. politics."
—Sean Cahill, Ph.D., Fenway Institute and New York University