Matt Foreman, the executive director of the National Gay and Lesbian Task Force,
was celebrating Arizona's defeat of a proposed constitutional amendment defining
marriage as the union of a man and a woman.
"It is always wrong to put basic rights up for a popular vote," he said, "and
it is nearly impossible for any minority to protect itself when that happens.
But today in Arizona the impossible happened."
Constitutional democracy is incompatible with the rights of minorities? That
would have come as news to champions of American liberty from John Adams to
Martin Luther King. They would have been even more taken aback, to use no
stronger term, by the suggestion that there is a "basic right" to homosexual
marriage, something American law has never permitted.
Once, Americans who considered themselves progressive had faith in the
collective wisdom of the citizenry and fought to extend the franchise to more
people (e.g., women) and more decisions (e.g., the election of US senators).
Their democratic confidence reflected a civic conviction as old as American
independence itself -- that "governments are instituted among men, deriving
their just powers from the consent of the governed."
But don't talk to advocates of same-sex marriage about the consent of the
governed. They appear to regard democracy as a snare to be avoided. Hence their
preference for securing gay marriage by judicial command, as in Massachusetts
and New Jersey. And hence their aversion to letting voters decide whether the
definition of marriage should be changed.
"History is replete with examples of advances in civil rights that would not
have been tolerated had they been put to a popular vote," wrote Kathleen
O'Connor, president of the Women's Bar Association, about the petition by
170,000 Massachusetts voters for a constitutional amendment defining marriage.
"If our Bill of Rights were today submitted for voter approval, it would be
defeated as too radical."
Even more scornful of democracy was the Berkshire Eagle. "If civil rights were a
matter for the ballot box," the largest newspaper in western Massachusetts
editorialized on Nov. 8, "blacks would undoubtedly still be drinking from
separate water coolers and riding in the back of buses." When the Massachusetts
Legislature corruptly avoided voting on the petitioners' amendment, ducking the
vote required by the state constitution, the paper cheered its lawlessness.
"Civil rights should never be determined by a majority of voters," it declared.
"Ballot questions are blunt instruments, lacking the delicacy of legislation."
It is hard to say which is sadder: the contempt for ordinary Americans that such
comments reflect, or the ignorance of American history underlying them.
To begin with, it wasn't through "blunt" ballot measures that Southern buses and
water fountains were segregated. It took the "delicacy of legislation" to write
something so abominable into law.
Nor was it by means of a judicial bolt from the blue that segregation was
finally crushed. It was through the passage of the Civil Rights Act of 1964 -- a
legislative milestone that would never have been reached if not for the fact
that a majority of white Americans supported it.
To be sure, there were court cases, such as Brown v. Board of Education, that
played a role in extending civil rights to citizens of every race. But those
rulings didn't conjure newfangled "rights" out of thin air. They restored rights
that had been created democratically and were already supposed to be the law of
the land. The 14th Amendment -- approved by Congress and ratified by
three-fourths of the states in 1868 -- had guaranteed equality and due process
to blacks and whites alike. The Civil Rights Act of 1875 had barred
discrimination in public accommodations. But the Supreme Court had gutted those
protections -- for example in 1896, when it authorized streetcar segregation in
Plessy v. Ferguson. It wasn't democracy that failed black Americans during the
long decades of Jim Crow. It was a judiciary unwilling to protect the equality
that the democratic process had guaranteed.
The republican form of government to which all Americans are entitled makes them
the source of the constitution(s) under which they live. The only valid civil
rights are those that have the consent of the governed. Their legitimacy comes
from the democratic process, not from judicial fiat or political correctness.
"I know no safe depository of the ultimate powers of the society but the people
themselves," Thomas Jefferson said, "and if we think them not enlightened enough
to exercise their control with wholesome discretion, the remedy is not to take
it from them, but to inform their discretion." Same-sex marriage will never be a
civil right until the people in their discretion make it one.
