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Power to the people!

Yesterday, in response to my posting about gay marriage, longtime valued commenter JimK asked just how far I was willing to trust public referendums as the "final say."

It's a fair question, and one that deserves a serious answer.

P.J. O'Rourke, a man whose writings have greatly influenced me, once pointed out that "pure" democracies tend to last about as long as it takes 51% of the people to realize that they can freely screw the other 49% at will. He's quite right, and for that reason I am profoundly greatful that our Founding Fathers set up a representative democratic republic, with certain fundamental rights recognized and safeguards set up for the protection of the minority.

That being said, I still believe that in matters of purely social import, where the acceptance by the majority is a key element, a public referendum is the best way to go.

When the Massachusetts Supreme Judicial Court first imposed gay marriage on the state, I predicted at the time that there would be a backlash effect. And when mayors in New York and California started issuing marriage licenses to gay couples in clear violation of existing laws, I was even more confident that would happen.

And it did.

I sincerely believe that a government-sanctioned legal bond between two consenting adults of the same sex would be, overall, A Good Thing for our society, and believe that it is going to happen some day. Whether it is called "marriage," "civil union," or "hroffelnitz" doesn't matter to me a whit -- these relationships are very real, and are here to stay. Society should recognize them and welcome them as a source of much-needed stability in our culture.

But a bare majority of a panel of seven judges in one state hardly constitutes "public acceptance." How this change comes about is just as important as the change itself.

I don't know why I expected more from the state that gave us John Kerry, Ted Kennedy, and Michael Dukakis.

Comments (17)

We have a Constitutional Re... (Below threshold)

We have a Constitutional Republic to protect the rights of individuals.

Marriage, however, is not inherent in the individual. It is something that has always been conveyed by society onto a couple. Look at who officiates a wedding down through history. They include Priests, Judges, and ship's Captains. These are high level representatives of our culture and society. Society has always applied standards to who can get married as well which has usually been prohibition of relatives getting married. Lastly let's not forget the clique "Speak now or forever..." that gives others an opportunity to object.

Anything different could be called marriage, but it that in name only. If the above is not observed, marriage becomes meaningless.

My father had another heart... (Below threshold)

My father had another heart attack last year. This one landed him in CVICU for three months, most of them unconscious. While I was there, I had the opportunity to witness many other grieving families.

The situation greatly underscored family and spousal rights when it comes to everything from visitation rights to patient treatment.

Jay is right. These relationships are not going away, and the basic civil rights we deny them are cruel.

If you sat all night in CVICU for three months, you would see it, too.

If you don't like them, battle to your heart's content in the social arena, but don't deny them their basic rights as human beings. Don't call it a marriage - fine, whatever. Let them simply have a recognized-by-law bond that the insurance companies and police officers can recognize.

Really. What's the harm in that?

I'm trying to keep this dis... (Below threshold)

I'm trying to keep this discussion as to whether or not the decision should be left to a vote. The discussion whether or not gay marriage should exist is a seperate one from this topic.

At the time the Mass SJC ac... (Below threshold)

At the time the Mass SJC acted, public acceptance of the idea of civil unions was increasing. Since then, it's dropped precipitously.

If anything underscores Jay's point, that does.

And there's a reason I'm ta... (Below threshold)

And there's a reason I'm talking about civil unions above, and not same-sex marriage -- after the SJC's ruling, many gay bloggers argued emphatically that civil unions would be a cop-out, that only same-sex marriage would be acceptable as an outcome.

When the perfect is the enemy of the good, only the bad wins.

I'm slightly confused here.... (Below threshold)

I'm slightly confused here. Basic question: Are you proposing a vote for a marriage recognized in one state only? It would get confusing and complicated if you were married in Mass. but not in NH. It seems it needs to be all states or nothing.

That is why a recognition o... (Below threshold)
Sabba Hillel:

That is why a recognition of a civil, contract based form, rather than "marriage, would be better. If two people write a contract, part of which state,

the two parties will recognize each other as "next of kin" for all legal relationships such as inheritence, hospital visits, and medical and legal decisions

I do not think that there would be an outbreak of outrage as there would if it were a marriage in one state and not the other. It would be like a legal power of attorney.

Marriage on the other hand involves, a spiritual, religious, and social connection. A "gay marriage" seems designed to provoke the controversy and would definitely not be recognized by everyone. A contractual partnership on the other hand would be not different than two doctors opening up a common office in partnership.

Jay, I agree that a recogni... (Below threshold)

Jay, I agree that a recognition of a legal bond between two consenting same sex adults will eventually come about. I might be misreading things but I believe one important issue is that society is hung up on using the term "marriage" for these same sex unions. Society realizes that the term has traditionally meant a legal union between a man and a woman. It is not a hang up for which I blame them. I think the gay community could best serve its interests by eliminating any need to have the word marriage formally associated with this union. But perhaps they would consider this an unacceptable compromise.

This should be a big who ca... (Below threshold)

This should be a big who cares for most people. However, because we are a traveling society and officials in one state are required to recognize laws of another state it is important to get resolution of the question. One of the issue is the termonology. Marriage is understood by 98% of Americans to mean man and woman, husband and wife. I don't know what the idiot mayor in San Fran says when officiating one of his illegal unions but I doubt he says "I pronounce you husband and wife" to two women. Come up with some new words. Queeriage, maybe. "I pronounce you pitcher and catcher." or "I pronounce you Muff and Diver" They need to get creative instead of just grabbing words that mean something else and trying to change the meaning.

I think the most relavent q... (Below threshold)

I think the most relavent question is: What is the difference between a "civil union" and a "marriage"? Isn't a marriage simply a civil union with a formal ceremony? I believe that most people would/do accept the legality of same-sex civil unions. Let the church or jurisdiction (in a courthouse ceremony) decide whether or not to perform same-sex ceremonies. With or w/o the ceremony, there's still a binding contract that can only be dissolved through legal channels.

"That being said, I still b... (Below threshold)

"That being said, I still believe that in matters of purely social import, where the acceptance by the majority is a key element, a public referendum is the best way to go."

First off how exactly would you define a matter of social import? In my book integration in the South qualifies as a matter of social import and I think it is fairly safe to say that, if left to the popular will of a referendum, legal segregation might still be with us today in some states. That would be wrong, without a doubt. Because the key issue in the case of the civil rights movement was not "acceptance by the majority," indeed, in this case, the will of the Southern majority was the source of the wrong. The key issue in the civil rights movement was not majority acceptance but the unfair disenfranchisement of the minority.

You don;t have to draw a moral equilvalence between the Freedom Riders and gays who want to get married to see that both are matters of social import. The question I guess is why the "acceptance of the majority" not the measure of right or wrong in the first case, but becomes the measure in the latter? I would argue that there is no justifiable reason. Fear of backlash is hardly a good reaon not to do what is right.

It is precisely in matters of social import that the tyranny of the majority is felt most aggregiously because it impinges on the daily personal lives of those in the minority.

I agree that "how this change comes about is just as important as the change itself" but I would argue that change now -- through the courts -- is a lot better than change 20 years from -- through gradual public enlightenment. Why should we delay doing the right?

As a gay man, I totally agr... (Below threshold)

As a gay man, I totally agree with DaveD. Why the gay population has become so hung up on the WORD marriage is beyond me. Give me the same rights and privledges that straight married couples get and you can call it "Best Friends Forever" and give me and my partner each a locket with half a heart on it for all I care.

I wish I was as optomistic as Jay is though concerning this change of public opinion coming about. In my opinion, it is the responsibility of the gay community to put out a more positive image to dispell the myths and stereotypes that pervade peoples fears about homosexuality. After being dragged to gay pride last summer, I don't see that happening anytime soon....

I think its a matter of sep... (Below threshold)

I think its a matter of separation of church and state.

One the one hand, allowing citizens to engage in a civil union should be a right, regardless of whether its with a man and woman, because there are legal ramifications involved. The government should not have the right to dictate what contracts we enter into based on sexual preference, what personal decisions we make, etc.

Conversely, because marriage is historically a religious matter, I believe the term should be removed from the legal definition of civil union and left to individuals and their belief system. If a certain religious group wants to restrict those allowed to marry within their community, so be it.

So what would that mean to a standard Joe like me? One trip to the Judge's office and another to church.


People just can't stop and ... (Below threshold)

People just can't stop and focus on the real point can they? They hear "gay" and scramble to find reasons over which to argue.

Lok, my point was STOP TALKING ABOUT GAY MARRIAGE for a second. Instead, substitute something YOU value, something YOU consder a right, something that is sacred to you.

Now imagine that thing in the hands of the general population, who may or may not approve and with one fell swoop, with today's media-blitz way of influencing voters...they could take it away from you. Do we really want to be rules by the whims of the masses? I don't. The men that founded this nation did not.

Referendums are nothing more than 51% of the people figuring out they can screw the other 49% whenever they want. Acceptance has nothing to do with it.

I think that there's a ligh... (Below threshold)

I think that there's a light at the end of this long, dark tunnel (and it's not called "rebirthing").

There's a website: CivilFoundation.org -- it looks like the people who started the site are lawyers who realized the whole focus on the word "marriage" was the problem rather than a solution. They came up with a way to customize legal documents for unmarried couples to whatever state the couple resides: living wills, powers of attorney, inheritance documents, etc . It's, like, ready-made Civil Unions . . .

The timing for something like this is uncanny.

A republic ultimately has t... (Below threshold)

A republic ultimately has the same vulnerability to the wisdom, and the venality, of the majority as a "pure democracy." Actually, it doesn't even take a majority. 51% of the voters in 2/3rds of the states can amend the Constitution. Bottom line: in any kind of democracy, if the people are assholes, we're all screwed.

Alec:If two-thirds... (Below threshold)


If two-thirds of the states' legislatures vote to call for a constitutional convention, then Congress must call one. Any amendments passed by that convention, or by Congress using the normal amendment process, must then be approved by the legislatures in three-quarters of the states.

The states can call conventions of their own to ratify or reject an amendment, but as far I know, they can't put one to a direct vote or referendum. (The 21st amendment, repealing Prohibition, was the only amendment ratified this way. And North Carolina was the only state that didn't participate. And yes, I'm being a show-off.)






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