Why 'gay marriage' should not (have to) be put to a popular vote

New York is just one of the latest "battlegrounds" advancing or retreating from gay marriage. (A "gang of three" NY Democratic Senators insist that they will not put the Senate in Democratic control unless there is a pledge not to bring the issue to the floor in 2009. [TV1 - 12/04/2008]) And this is in the aftermath of California's Proposition 8, where a referendum passed with a close majority vote (without the prior two-thirds Legislative referral required for a revision to the CA state constitution) to make same-sex marriage illegal.

But suppose Proposition 8 had been defeated on November 4th with the percentages reversed (thus letting the May 15th CA Supreme Court ruling stand). And suppose that the NY Legislature were to pass a law making same-sex marriage legal. There would be still something unsettling about this, leaving a feeling of tenuous victory. After all, a simple popular vote could reverse the "right" of marriage equality after it had been won in the public sphere (no matter how unlikely that might be).

The May 15th CA Supreme Court's majority opinion states that

[U]nder this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual's liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.
— re Marriage Cases, S147999, p. 6.

One only has to look at the US Supreme Court's decisions in Romer v. Evans (1996) and Lawrence v. Texas (2003), the two landmark 'gay rights' cases. In both of these, the Court ruled, homosexuals were denied fundamental^* rights by state legislatures. On the other hand, forty-one years ago Loving v. Virginia (1967) established marriage equality for interracial couples as a fundamental right.

None of these decisions can be overturned by a legislature or a popular referendum. (It would take a constitutional amendment or a reversal by the Court to do that.) I would feel better — for the reasons I am arguing here — if the CA Supreme Court does not reverse itself, upholds its prior decision, and strikes down Proposition 8 as unconstitutional than if a mere 51% had voted instead to say "No" on November 4th. (Not that would have been a bad thing. But sometimes success is savored sweeter in the quiet of court than from the rabble of crowd.)

One might ask "What about the Civil Rights Act of 1964? That was a legislative action, no?" But note that this act dealt with commerce, a province of Congress, and not as a fundamental right as in the case of Loving v. Virginia. And remember, it took three years from the passage of that act before this fundamental marriage right was decided by the Court. Thus the current issue of marriage equality with respect to same-sex marriage is not at its core a civil rights issue — it is a fundamental, constitutional rights issue.

So while the activism catalyzed by the passage of Prop 8 is good, I hope that an understanding of constitutional, fundamental rights does not go missing. Those who think that they need to win in the public forum (Andrew Sullivan comes to mind as someone who is against the Court getting involved) forget about Loving v. Virginia, which would probably not have had a popular victory in 1967.

Most amusing (sadly) is the perennial rant from conservatives about "judicial activism", by which they primarily mean, in addition to today's state supreme court rulings in favor of gay marriage, rulings like Romer v. Evans and Lawrence v. Texas (as well as, of course, Roe v. Wade). Certainly Loving v. Virginia and Brown v. Board of Education (1954) were as "activist" as the others, but conservatives will not rant against these — it would not be politically correct to do that in 2008. Also, further exposing the conservatives' sham, suppose that a city or state were to pass a law restricting gun possession, supported by the majority of people in that locality; you don't think they would want a little judicial activism then? But wait, they got it in District of Columbia v. Heller!

Next case.



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^* I use fundamental and constitutional interchangeably here, for that is sometimes the way the Court writes, especially when referring to individual and minority rights protected from majority retraction.