May 9, 2011
A guest post from JPM on a very interesting topic. Opinions expressed reflect those of the author alone -Adam
By jpmassar (aka JPM on P8TT)
No one should vote on other people’s rights. That’s why we have a Constitution, a Bill of Rights and the 14th amendment, judicial review of legislation, and a federal amendment process that demands a supermajority of both Congress and the States to change our basic governing document.
But the Constitution of the United States, and the ‘fundamental rights’ the Supreme Court has said are ours inherently, have never yet been interpreted to preclude the denial of these rights to LGBT American citizens.
And the fact of the matter is, as homophobic organizations delight in telling, LGBT rights have been voted on by the people of the United States at least thirty one times, and every time said people have done so said rights have gone down to defeat.
Partly as a result of these votes, and partly out of the strong belief that people should not as a matter of moral principle be voting on the rights of others, LGBT organizations, many individual LGBTs, and many allies have taken a strong stand against putting marriage equality on the ballot — fighting the fight if left no other choice (e.g., in California in 2008 and in Maine in 2009), but otherwise eschewing such votes.
The opponents of equality don’t care what tactics they use. If a ballot initiative is the best tactic, they’ll go with that. If intimidating legislators is what’s called for, they’re happy to do that too. If recalling judges will send a chilling message, well, go for it. And if spreading lies and inciting unfounded fears via advertising will get the job done, they have no problem with that either.
Is it the case that for the proponents of equality to forgo the tactic of referendums where winnable is simply handing the opposition a victory by default?
It is time to have a debate about this. Join me on the flip.
Practical Consideration #1:
More Americans than not now support same-sex marriage. Therefore in states with Democratic majorities — where the battle is currently being fought — because Democrats always poll on this issue as more supportive than Republicans, mathematics all but dictates that marriage equality polls more favorably in Blue states than the national polling averages, which are now around 50%.
Practical Consideration #2:
We are now witnessing NOM’s and the Religious Right’s latest intimidation tactics — not against the people, but against their legislators. It is fast becoming impossible to get a marriage equality vote in a State legislature, because the opposition has perfected the technique of waiting until the time is ripe and then unleashing a blinding fury of letters, calls and emails to legislators on the fence, who then quail in fear of
God’s Maggie’s Wrath.
You saw it at work in Maryland. You saw it work in Rhode Island — the openly gay leader of their House of Representatives couldn’t even bring the question to a vote in the chamber he controls despite clear majority support by the population of Rhode Island! And you are seeing it in use in New York State as Governor Cuomo attempts to find his votes in the Senate.
Opponents of same-sex marriage have already financed a wave of 500,000 automated calls urging voters to contact undecided lawmakers…Religious opponents of same-sex marriage, meanwhile, have already begun using church bulletins, diocesan newspapers and sermons from the pulpit to encourage their followers to contact legislators and let them know how they feel… “We are willing to spend a million against any Republican senator who votes for gay marriage.”
The upshot is that the most likely outcome of 2011’s state battles for marriage equality will be three strikes and you’re out.
Practical Consideration #3:
To leave the fate of LGBT rights in the hands of nine Supreme Court Justices, four of whom are strongly suspected of an ‘over my dead body’ mentality when it comes to LGBT rights, is one helluva thing to rely on.
What do you think the odds are of the Supremes overturning DOMA, Section 3? If you say more than 50-50 I’d say you’re fooling yourself.
And the odds of them declaring that marriage between same-sex individuals is a fundamental right? I’d say no more than 25%, and that’s being generous.
Practical Consideration #4:
By taking a direct vote of the people off the table as an option, opponents of marriage equality are able to own a persuasive slogan: “Let the voters decide!” All voters — no matter what the issue — say they want to decide for themselves (I’ve never seen a poll where the voters, when asked, said they thought they should not be allowed to vote on an issue). They believe they are perfectly qualified to decide for themselves, and saying the opposition is against it resonates with those on the fence — “Why do they not want to let me vote? Something fishy is going on here…” (Of course this makes no sense in a representative democracy, but there is no law or constitutional provision that says voters have to be sensible).
Let’s look at a few of the effects elsewhere in the world of not being able to let the voters decide:
Australia: 62% of respondents supported the recognition of same-sex marriage, yet the Prime Minister will not allow a vote to be held in Parliament, despite 78% support for allowing that vote.
United Kingdom: 61% agreed with the statement “Gay couples should have an equal right to get married, not just to have civil partnerships” while 33% disagreed. No vote has ever been taken in Parliament.
France: A July 2010 CrÈdoc poll found 61% of respondents in favor of same-sex marriage… A January 2011 TNS-Sofres poll found that 58% of respondents supported same-sex marriage. No vote has ever been taken in the national legislature.
Ireland: A recent poll has found that 61% of people in Ireland are in favor of gay marriage, with only 27% opposed. No vote has yet been taken, although one may happen at some point given the recent turnover in government.
We can see that legislatures worldwide have been reluctant to follow the will of the people, largely for fear of their own religious establishments. It is true that here in the United States most states cannot muster registered or likely voter majority to pass same-sex marriage — yet — (as opposed to an ‘all adults’ majority, which is what most of the national polls sample), but there are exceptions:
— In New Hampshire, the Republicans in the legislature were barely held back from voting away marriage equality this year and may well do so next year. There have been calls for a referendum, which have been rejected in the hope that the Republicans will not be able to muster a veto override. But if marriage equality advocates were to have accepted a referendum proposal, recent polling suggests a margin impossible for right wing homophobes to overcome: 56%-35%, 62%-29% and 59%-34% in favor of retaining the status quo (marriage equality) in three polls taken in 2011. (Note: Binding referenda aren’t actually possible in New Hampshire; the right presumably proposed such a vote to appeal to the ignorant. A non-binding referendum would presumably be a possibility though.)
— In Rhode Island, NOM and its allies had been loudly proclaiming “Let the people vote!”. Yet if the people did vote, every reputable poll in the last couple of years has shown a wide majority in favor of marriage equality (50%-41%, 59%-31%, 60%-31%). Had marriage equality proponents accepted the challenge head on we could look forward to marriage equality in Rhode Island after the next election. As it is, there is no prospect of marriage equality given the makeup of the Legislature and its leadership. Perhaps proponents’ cry should have been “Indeed, let the people vote!”
— In New York, polling shows consistent support for marriage equality (58%-36%, 56%-37%, 57%-38%). The legislature is not reflective of this sentiment, and unfortunately there is no mechanism for ballot initiatives (at least binding ones) in New York State.
— In California, the polling is also favorable: 51%-40%, 51%-42%, 50%-45%. The polling will likely be more favorable come November 2012 (because of continued demographic shifts and evolving social attitudes), and there won’t likely be a more favorable electoral demographic than the 2012 California electorate until 2016.
Yet Equality California and national LGBT organizations are still gnashing their teeth and debating whether ‘the time is right’ for a vote, or whether the endlessness of the Proposition 8 trial should be allowed to continue until someday Anthony Kennedy flips a coin to decide the fate of same-sex marriage in California and possibly the entire United States.
Perhaps it’s time to let the people of California undo their mistake. Surely it would be an enormous effort. Money, time and effort will be needed in abundance. But the result — the largest state in the Union once and for all putting to rest the myth that the people will not vote for marriage equality — will have been worth it. “Indeed, let the people vote!”
— In Maryland, everyone knew that if the legislature passed marriage equality it would go to the voters as a ballot initiative. Would the legislation have passed the Assembly if proponents had agreed up front to a ballot initiative? Would it have provided cover for the two or three Representatives that the bill was short by to vote for it? We don’t know, but it might have.
Polling had indicated it would have been close. The two most recent results were 51%-44% and 46%-44% in favor. But at least it would have stood a chance. Now the prospects for the legislation — despite the Legislative Leadership’s claim to bring it up again in the 2012 session — seem more like a) slim, or b) none.
“Indeed, let the people vote!”
— In Minnesota, the Republican legislature is proceeding apace to put on the 2012 ballot a constitutional amendment prohibiting same-sex marriage. But have they miscalculated?
In Indiana, a far more conservative state than Minnesota, a recent poll showed that a plurality of voters (47%) opposed a similar constitutional amendment, while 43% were in favor. In 2009, a Minnesota Star-Tribune poll reported that only 33% wanted such a constitutional amendment, 34% were confortable with the status quo (a law forbidding same-sex marriage) and 25% were in favor of same-sex marriage. In October of 2010, a Humphrey poll showed that 41% were in favor of marriage equality, with 49% against it (being against marriage equality does not necessarily mean favoring a constitutional amendment, so this is a relatively good result).
This evidence, along with prospective continued social change, suggests that by November of 2012 the homophobic right wing could be in for quite the shock in Minnesota. Perhaps they will no longer be saying
“Indeed, let the people vote!”
As acceptance of gay marriage becomes ever more prevalent in society, more and more states will able to pass a referendum legalizing same-sex marriage — and more and more state legislators and judges will be on the receiving end of the religious right’s increasingly desperate yet all too effective attacks.
Is the LGBT community willing to continue to renounce the use of the referendum? A tool that once successfully employed — so that the claim that the people will not vote for marriage equality is debunked forever — could knock years off the fight?
Yes, I agree that people should not be voting on the rights of others, and if the Supreme Court were not composed mainly of white Republican males, it might be best to let the courts rule, taking such time as they will. But they already have, and it is.
What would Harvey Milk be advocating at this juncture?
What do you think? Shall we
“Indeed, let the people vote?”