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For Better or for Worse: The Case Against Referenda on Marriage Equality

By Frank Gulino
December 27, 2012

On Nov. 6, 2012, voters in Maine, Maryland and Washington made history when they voted to legalize same-sex marriage. After defeats in each and every one of 32 prior state ballot initiatives, the 2012 Election Day victories marked the first time that supporters of marriage equality succeeded at the ballot box. Within days following the election, a published report indicated that, in the wake of the referenda successes, gay rights activists were preparing for another ballot initiative to legalize same-sex marriage, this time in the state of Oregon. See Harry Esteve, Oregon May Be Next State For Gay Marriage Ballot Battle, HuffPost Religion, Nov. 11, 2012, www.huffingtonpost.com/2012/11/11/oregon-gay-marriage-ballot_n_2110014.html. But while it is natural for same-sex marriage supporters to want to ride the current wave of ballot box victories for marriage equality, that instinct should be resisted because popular-vote referenda are simply not the appropriate vehicle for determining fundamental individual rights, like the right to marry.

The 2012 Referenda on Marriage Equality

In the State of Washington, a bill permitting same-sex marriage was signed into law on Feb. 13, 2012; it was to have taken effect 90 days after the end of the legislative session. But opponents moved quickly, taking advantage of a clause in the statute that permitted the law to be tested by public referendum. In Maryland, a statute legalizing same-sex marriage was signed into law on March 1, 2012; it was to become effective on Jan.1, 2013. But as in Washington, opponents of the Maryland law soon began a drive to place the issue before the electorate in November. As a result of the efforts by marriage equality opponents, referenda appeared on the ballot in both states on Election Day 2012, asking voters to make a choice between granting and prohibiting the right of same-sex couples to marry.

Voters in two other states, Maine and Minnesota, also saw same-sex marriage referenda on the ballot in 2012. In Maine, the referendum was the result of an unprecedented pro-marriage equality initiative, seeking to overturn the result of a 2009 referendum in which a majority of Maine voters repealed a statute, enacted that same year, which would have legalized same-sex marriage. And in Minnesota, where marriage is already defined in statute as the union of a man and a woman, a referendum was on the ballot seeking to enshrine that definition in an amendment to the state's Constitution. The results of the referenda were historic.

Historic Ballot Box Results In Favor of Marriage Equality

In all three states where the legalization of same-sex marriage was on the ballot ' Maine, Maryland and Washington ' a majority cast their votes in favor of marriage equality. It marked the first time that same-sex marriage was legalized by popular vote. And even in Minnesota, where same-sex marriage is illegal, voters rejected the proposed constitutional amendment that would have defined marriage as the union of a man and a woman, making that state the first in the country to vote against such an amendment.

But despite the historic, pro-same-sex marriage results at the ballot box in 2012, supporters of marriage equality should not be encouraged to leave their fortunes in the hands of voters. On the contrary, they should pursue marriage equality rights through legislation and, where appropriate, through constitutional challenges in the courts. For whatever the outcome of a referendum might be, there is a problem with leaving decisions that affect fundamental individual rights ' like the right to marry as a matter of equal protection ' to a majority vote of the electorate. It is a problem that undermines the role of our federal Constitution as a bulwark against majority oppression.

The Constitution As Protector of Minority Rights

One important role of the Constitution is to stand as a protection of the individual from oppression by the government. Another is to stand as a protection of the rights of the few from the will of the many, what Alexis de Tocqueville called the “tyranny of the majority.” But the role of the Constitution as protector of minority rights is endangered when we cede to the majority decisions on whether unpopular minorities are entitled to constitutional rights, including equal protection under the law.

Divergent Outcomes: Marriage Equality in the Hands of Courts, Legislators and Voters

The danger of leaving decisions on equal protection to the dictates of a majority vote of the people has been evident in the outcomes of dozens of referenda on same-sex marriage that were held prior to Election Day 2012. The results of those referenda ' in stark contrast to the holdings of high court jurists and the products of legislative debate and deliberation on same-sex marriage during the same period ' illustrate the danger.

From 2003 to 2011, marriage equality became law in six states and the District of Columbia. In some of those states ' Massachusetts, Connecticut and Iowa ' same-sex marriage was legalized by judicial determinations that the state, as a matter of constitutional equal protection, could not deny same-sex couples the civil right to marry. In the others ' Vermont, New Hampshire and New York, as well as in the nation's capital ' legislators crafted laws designed to afford same-sex couples the civil right to marry while exempting religious institutions for which same-sex marriage violates long-held, sacred beliefs. But in every state where the legal definition of marriage was put to a direct vote of the electorate ' prior to Election Day 2012, that had happened in 32 states ' the result was always a majority vote against same-sex marriage.

The most famous (or, depending on one's point of view, infamous) decision left to a popular vote on the issue of same-sex marriage is undoubtedly the 2008 California ballot initiative known as Proposition 8. Following a California Supreme Court decision that had declared same-sex marriage a constitutional right, opponents of marriage equality sought to overrule the court by placing in the hands of the electorate a proposed amendment to the state's Constitution that would define marriage as the legal union of one man and one woman. Like every other state referendum on same-sex marriage, Proposition 8 resulted in a majority vote against marriage equality. Unlike every other state referendum on same-sex marriage, Proposition 8 worked to strip away the constitutional right to marry that had been granted to same-sex couples by the state's highest court.

The Proposition 8 vote has been declared unconstitutional by a federal district court, a decision upheld by the Ninth Circuit in February 2012. Perry v. Schwarzenegger, 704 F. Supp. 2d 1021 (N.D. Cal. 2010), aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012). A petition for certiorari filed during the summer of 2012 placed Proposition 8 before the United States Supreme Court for consideration in its current term. See Hollingsworth v. Perry, 81 U.S.L.W. 3075 (U.S. July 30, 2012) (No. 12-144). On Dec. 7, the Supreme Court announced that it would review the Proposition 8 case. It is expected that oral argument will be held in March, with a ruling handed down by late June.

Protecting Minority Rights From the Oppression of the Majority

James Madison, the Father of the U.S. Constitution, wrote of the dangers of majority oppression in words that are appropriate to this discussion. In one of the most often quoted of The Federalist papers, Madison wrote of the “great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.” The Federalist No. LI (Feb. 8, 1788), in The Complete Madison 181 (Saul K. Padover ed. 1988). “If a majority be united by a common interest,” Madison continued, “the rights of the minority will be insecure.” Id. Society must provide against that “evil,” Madison wrote, for “[i]n a society [in] which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger ' .” Id. at 181-82.

Similarly, in perhaps the most famous of his Federalist essays, Madison noted the complaints that were “everywhere heard from our most considerate and virtuous citizens ' that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The Federalist No. X (Nov. 22, 1787), in The Federalist 44 (Colonial Press ed. 1901).

In pointing out the danger of majority oppression, Madison was by no means dismissive of the importance of the right of every citizen to exercise religious freedom. On the contrary, Madison was a champion of religious liberty, both in his work on the Constitution of his home state of Virginia as well as in his formulation of the First Amendment to the federal Constitution, guaranteeing religious liberty to Americans. See The Complete Madison at 18-19. But Madison also recognized in The Federalist No. LI that “[i]n a free government the security for civil rights must be the same as that for religious rights.” Id. at 182. Nor can there be any doubt that the right to marry is a fundamental civil right.

In its landmark decision striking down laws against interracial marriage, the Supreme Court long ago noted that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and described marriage as “one of the basic civil rights of man, fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967) (internal quotations omitted). So fundamental a right ought not be subjected to a public vote and the “tyranny of the majority.”

Rather, as New York's highest court expressed in Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), “the present generation should have a chance to decide the issue [of whether to legalize same-sex marriage] through its elected representatives.” Id. at 12. Madison wrote eloquently on the virtue of securing individual rights through elected representatives, rather than by popular vote, to avoid majority oppression. “To secure the public good, and private rights, against the danger” of an overbearing majority faction, Madison proposed that public views be passed through what he called “the medium of a chosen body of citizens” ' elected representatives ' “whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” The Federalist No. X, in The Federalist at 47, 49. “Under such a regulation,” Madison continued, “it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.” Id. at 49.

Conclusion

The results achieved at the ballot box in 2012 by supporters of same-sex marriage were undoubtedly historic. And those results are further demonstration that popular support for marriage equality is on the rise. The voice of the people was heard. But it remains that the referendum is not the appropriate vehicle for determining fundamental individual rights.

By granting or limiting individual rights ' like the right to marry ' through legislation, the voice of the people can still be heard, filtered through the “chosen body of citizens” entrusted by the people with the drafting of laws. And should legislation be enacted that violates the constitutional rights of any individual or group, including the right to equal protection, the U.S. Supreme Court and state courts of last resort, as arbiters of the constitutionality of our laws, stand ready to right that wrong.


Frank Gulino, a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers, is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.

On Nov. 6, 2012, voters in Maine, Maryland and Washington made history when they voted to legalize same-sex marriage. After defeats in each and every one of 32 prior state ballot initiatives, the 2012 Election Day victories marked the first time that supporters of marriage equality succeeded at the ballot box. Within days following the election, a published report indicated that, in the wake of the referenda successes, gay rights activists were preparing for another ballot initiative to legalize same-sex marriage, this time in the state of Oregon. See Harry Esteve, Oregon May Be Next State For Gay Marriage Ballot Battle, HuffPost Religion, Nov. 11, 2012, www.huffingtonpost.com/2012/11/11/oregon-gay-marriage-ballot_n_2110014.html. But while it is natural for same-sex marriage supporters to want to ride the current wave of ballot box victories for marriage equality, that instinct should be resisted because popular-vote referenda are simply not the appropriate vehicle for determining fundamental individual rights, like the right to marry.

The 2012 Referenda on Marriage Equality

In the State of Washington, a bill permitting same-sex marriage was signed into law on Feb. 13, 2012; it was to have taken effect 90 days after the end of the legislative session. But opponents moved quickly, taking advantage of a clause in the statute that permitted the law to be tested by public referendum. In Maryland, a statute legalizing same-sex marriage was signed into law on March 1, 2012; it was to become effective on Jan.1, 2013. But as in Washington, opponents of the Maryland law soon began a drive to place the issue before the electorate in November. As a result of the efforts by marriage equality opponents, referenda appeared on the ballot in both states on Election Day 2012, asking voters to make a choice between granting and prohibiting the right of same-sex couples to marry.

Voters in two other states, Maine and Minnesota, also saw same-sex marriage referenda on the ballot in 2012. In Maine, the referendum was the result of an unprecedented pro-marriage equality initiative, seeking to overturn the result of a 2009 referendum in which a majority of Maine voters repealed a statute, enacted that same year, which would have legalized same-sex marriage. And in Minnesota, where marriage is already defined in statute as the union of a man and a woman, a referendum was on the ballot seeking to enshrine that definition in an amendment to the state's Constitution. The results of the referenda were historic.

Historic Ballot Box Results In Favor of Marriage Equality

In all three states where the legalization of same-sex marriage was on the ballot ' Maine, Maryland and Washington ' a majority cast their votes in favor of marriage equality. It marked the first time that same-sex marriage was legalized by popular vote. And even in Minnesota, where same-sex marriage is illegal, voters rejected the proposed constitutional amendment that would have defined marriage as the union of a man and a woman, making that state the first in the country to vote against such an amendment.

But despite the historic, pro-same-sex marriage results at the ballot box in 2012, supporters of marriage equality should not be encouraged to leave their fortunes in the hands of voters. On the contrary, they should pursue marriage equality rights through legislation and, where appropriate, through constitutional challenges in the courts. For whatever the outcome of a referendum might be, there is a problem with leaving decisions that affect fundamental individual rights ' like the right to marry as a matter of equal protection ' to a majority vote of the electorate. It is a problem that undermines the role of our federal Constitution as a bulwark against majority oppression.

The Constitution As Protector of Minority Rights

One important role of the Constitution is to stand as a protection of the individual from oppression by the government. Another is to stand as a protection of the rights of the few from the will of the many, what Alexis de Tocqueville called the “tyranny of the majority.” But the role of the Constitution as protector of minority rights is endangered when we cede to the majority decisions on whether unpopular minorities are entitled to constitutional rights, including equal protection under the law.

Divergent Outcomes: Marriage Equality in the Hands of Courts, Legislators and Voters

The danger of leaving decisions on equal protection to the dictates of a majority vote of the people has been evident in the outcomes of dozens of referenda on same-sex marriage that were held prior to Election Day 2012. The results of those referenda ' in stark contrast to the holdings of high court jurists and the products of legislative debate and deliberation on same-sex marriage during the same period ' illustrate the danger.

From 2003 to 2011, marriage equality became law in six states and the District of Columbia. In some of those states ' Massachusetts, Connecticut and Iowa ' same-sex marriage was legalized by judicial determinations that the state, as a matter of constitutional equal protection, could not deny same-sex couples the civil right to marry. In the others ' Vermont, New Hampshire and New York, as well as in the nation's capital ' legislators crafted laws designed to afford same-sex couples the civil right to marry while exempting religious institutions for which same-sex marriage violates long-held, sacred beliefs. But in every state where the legal definition of marriage was put to a direct vote of the electorate ' prior to Election Day 2012, that had happened in 32 states ' the result was always a majority vote against same-sex marriage.

The most famous (or, depending on one's point of view, infamous) decision left to a popular vote on the issue of same-sex marriage is undoubtedly the 2008 California ballot initiative known as Proposition 8. Following a California Supreme Court decision that had declared same-sex marriage a constitutional right, opponents of marriage equality sought to overrule the court by placing in the hands of the electorate a proposed amendment to the state's Constitution that would define marriage as the legal union of one man and one woman. Like every other state referendum on same-sex marriage, Proposition 8 resulted in a majority vote against marriage equality. Unlike every other state referendum on same-sex marriage, Proposition 8 worked to strip away the constitutional right to marry that had been granted to same-sex couples by the state's highest court.

The Proposition 8 vote has been declared unconstitutional by a federal district court, a decision upheld by the Ninth Circuit in February 2012. Perry v. Schwarzenegger , 704 F. Supp. 2d 1021 (N.D. Cal. 2010), aff'd sub nom. Perry v. Brown , 671 F.3d 1052 (9th Cir. 2012). A petition for certiorari filed during the summer of 2012 placed Proposition 8 before the United States Supreme Court for consideration in its current term. See Hollingsworth v. Perry , 81 U.S.L.W. 3075 (U.S. July 30, 2012) (No. 12-144). On Dec. 7, the Supreme Court announced that it would review the Proposition 8 case. It is expected that oral argument will be held in March, with a ruling handed down by late June.

Protecting Minority Rights From the Oppression of the Majority

James Madison, the Father of the U.S. Constitution, wrote of the dangers of majority oppression in words that are appropriate to this discussion. In one of the most often quoted of The Federalist papers, Madison wrote of the “great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.” The Federalist No. LI (Feb. 8, 1788), in The Complete Madison 181 (Saul K. Padover ed. 1988). “If a majority be united by a common interest,” Madison continued, “the rights of the minority will be insecure.” Id. Society must provide against that “evil,” Madison wrote, for “[i]n a society [in] which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger ' .” Id. at 181-82.

Similarly, in perhaps the most famous of his Federalist essays, Madison noted the complaints that were “everywhere heard from our most considerate and virtuous citizens ' that measures are too often decided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The Federalist No. X (Nov. 22, 1787), in The Federalist 44 (Colonial Press ed. 1901).

In pointing out the danger of majority oppression, Madison was by no means dismissive of the importance of the right of every citizen to exercise religious freedom. On the contrary, Madison was a champion of religious liberty, both in his work on the Constitution of his home state of Virginia as well as in his formulation of the First Amendment to the federal Constitution, guaranteeing religious liberty to Americans. See The Complete Madison at 18-19. But Madison also recognized in The Federalist No. LI that “[i]n a free government the security for civil rights must be the same as that for religious rights.” Id. at 182. Nor can there be any doubt that the right to marry is a fundamental civil right.

In its landmark decision striking down laws against interracial marriage, the Supreme Court long ago noted that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and described marriage as “one of the basic civil rights of man, fundamental to our very existence and survival.” Loving v. Virginia , 388 U.S. 1, 12 (1967) (internal quotations omitted). So fundamental a right ought not be subjected to a public vote and the “tyranny of the majority.”

Rather, as New York's highest court expressed in Hernandez v. Robles , 855 N.E.2d 1 (N.Y. 2006), “the present generation should have a chance to decide the issue [of whether to legalize same-sex marriage] through its elected representatives.” Id . at 12. Madison wrote eloquently on the virtue of securing individual rights through elected representatives, rather than by popular vote, to avoid majority oppression. “To secure the public good, and private rights, against the danger” of an overbearing majority faction, Madison proposed that public views be passed through what he called “the medium of a chosen body of citizens” ' elected representatives ' “whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” The Federalist No. X, in The Federalist at 47, 49. “Under such a regulation,” Madison continued, “it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.” Id. at 49.

Conclusion

The results achieved at the ballot box in 2012 by supporters of same-sex marriage were undoubtedly historic. And those results are further demonstration that popular support for marriage equality is on the rise. The voice of the people was heard. But it remains that the referendum is not the appropriate vehicle for determining fundamental individual rights.

By granting or limiting individual rights ' like the right to marry ' through legislation, the voice of the people can still be heard, filtered through the “chosen body of citizens” entrusted by the people with the drafting of laws. And should legislation be enacted that violates the constitutional rights of any individual or group, including the right to equal protection, the U.S. Supreme Court and state courts of last resort, as arbiters of the constitutionality of our laws, stand ready to right that wrong.


Frank Gulino, a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers, is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.

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