Can a Referendum Decide Basic Rights?
Lingering questions about fundamental rights are likely to speed the issue of gay marriage to the U.S. Supreme Court.
Americans may argue about what liberties are protected in our founding documents, but on this, most people will agree: Fundamental freedoms should not be subject to a popular vote.
Had a national referendum been taken in 1960 on whether to extend the vote to blacks, it almost surely would’ve failed – especially in the Democratic South. If the Second Amendment’s right to bear arms were put to a referendum right now in Washington, D.C., or in Chicago, it would likely run into trouble. Neighbors don’t get to vote on whether a protest is permitted downtown. Communities aren’t allowed to decide whether the local pharmacy can carry birth control.
Courts exist, in part, to decide when majority rule cannot be reconciled with fundamental rights. They were established for the express purpose of defending minorities against the tyranny of the majority.
In California last week, a federal judge ruled that a statewide referendum to bar gays from marrying was irrational on its face. Judge Vaughn Walker said there was no evidence presented to support the idea that gay marriage harms society or the institution of marriage.
He ruled that morphing gender roles had altered the very nature of the marital contract, making it a pact between equals. And he argued that religious disapproval cannot be grounds for civil law.
But he also ruled that the results of the referendum didn’t matter because “fundamental rights may not be submitted to a vote.”
It is that principle – articulated in a 1943 Supreme Court decision cited by Walker – that may eventually undermine laws and state measures all over America.
There is no doubting that anti-gay marriage laws are popular. Their very presence on the ballot can change the outcome of an election.
But if marriage is a fundamental individual right, then how can it be subject to a legitimate – and constitutional – vote? If marriage is not a fundamental right, then what is it, and what role should society have in promoting it?
Those questions are likely to speed the case through the federal judiciary and to the U.S. Supreme Court.
A decision there can’t come soon enough.
Recent Comments
Marriage is a social convention recognized and formalized by the state as a contract between two individuals. The article above conflates society and state, but they are not the same thing.
There is strong support for the idea of civil unions across both political parties and the citizens of most U.S. states. Civil union laws and proposals vary from state to state, but in general they are contracts that strongly resemble marriage and contain all of the financial and legal features of marriage contracts. Gay rights groups, however, often reject civil unions as an insufficient remedy.
The reason for the rejection, in my opinion, is that gays want the state to abolish lingering social stigma against gay sex and force people to view gay relationships as the equal of straight relationships. That’s an authoritarian goal, and besides which it would be fore-doomed to failure. You can’t pass a law to change the way people think.