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

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.