Supporters of same-sex marriage have reason to cheer after last week’s election. Supporters of democratic self-government, even those of us who oppose gay marriage, do too.
On Nov. 6, for the first time ever, voters in three states — Maine, Maryland, and Washington — redefined marriage by popular vote. In Minnesota, residents said no to a constitutional amendment enshrining the traditional understanding of marriage as the union of a man and a woman. There is no denying the significance of these results: Previously the issue had gone to the ballot in 32 states, and in all 32 same-sex marriage was defeated. Gay-marriage advocates have insisted for years that it is outrageous to put what they consider a question of civil rights to a vote, but going 4-0 on Election Day presumably made the outrage easier to swallow.
In nearly all of America, of course, marriage still means what it has always meant. Obviously a once-settled consensus has been changing, and last Tuesday may eventually prove to have been a tipping point. At the moment, however, there is no new consensus, and it’s anything but clear that the battle to redefine the core institution of human society is a done deal. The votes in Maine, Maryland, Washington, and Minnesota — Democratic strongholds all — were close, and in each one Barack Obama got a lot more votes than gay marriage did. Even in four deep-blue states, in other words, many voters who wanted to see the president reelected drew the line at same-sex marriage.
Plainly the political and philosophical struggle over the definition of marriage isn’t going away any time soon, no matter how much gay-marriage backers wish to declare the issue over. But now that gay activists have turned to the ballot and won, perhaps we can finally dispense with the claim that there is something unjust or illegitimate about deciding a question as momentous as marriage by referring it to the people (or to their elected lawmakers).
In a democratic republic, we vote on rights all the time. On Nov. 6, citizens in 38 states voted on ballot questions inviting them to legalize marijuana, end the death penalty, ban affirmative action, permit assisted suicide, bar public funding of abortion, reject an individual health-insurance mandate, or eliminate teacher tenure, to mention just a few. The rights of immigrants, of gun owners, of gamblers, of criminals, of union members, of homeowners, of taxpayers — all of them and more have been the subject of ballot initiatives and referendums in recent election cycles. And they in turn are only a drop in the bucket next to the flood of votes routinely taken by legislators — federal, state, and local — that have a direct impact on the rights of individuals and groups.
In a democratic republic, we vote on rights all the time.
Resolving thorny legal controversies through the political process can be frustrating and upsetting, all the more so when people feel that their fundamental rights are at stake. But the only alternative is to resolve them through fiat, as the Massachusetts Supreme Judicial Court did in 2003 when it conjured a right to same-sex marriage out of the state constitution. Or as the US Supreme Court did 30 years earlier, when Roe v. Wade purported to settle the question of abortion by taking it away from voters and legislators. Abortion, you may have noticed, is more unsettled than ever. Stifling the political process rarely leads to democratic harmony.
“Rights should not be put to a vote,” same-sex marriage advocate Evan Wolfson, the founder of Freedom to Marry, was still insisting the day after the election. But I suspect we’ll be hearing that argument less and less, as activists embark on fresh ballot campaigns to amend the many state constitutions that now block same-sex marriage. Unless, of course, the Supreme Court intervenes, and tries once again to impose a resolution by short-circuiting the workings of democracy.
I don’t claim that voters are always right, or that the people can’t make mistakes. By my lights, voters in Maine, Maryland, Washington, and Minnesota made a grave one last week. I believe same-sex marriage is a bad idea. But I also believe political legitimacy derives from the consent of the governed. “I know no safe depository of the ultimate powers of the society but the people themselves,” Thomas Jefferson said. Gay marriage shouldn’t be treated as sacrosanct, too lofty for mere politics. Let the debates, the struggles, the compromises, and, yes, the votes continue. Until the people work it out politically, this issue will never be settled.