I had a very odd and fun conversation last evening on Twitter regarding marriage equality. Something I had tweeted struck a cord and this guy sent me a reply which turned into a long string of tweets. In a nutshell, this guy was peeved because it appears that all the efforts for marriage equality are focused on the judicial system and winning marriage via court decision instead of efforts at the ballot box.

We must convince VOTERS about same-sex marriage. Our reliance on courts will most likely not end well.

He believes that the efforts directed towards the courts is:

Sure, we’ve taken the easiest and least consensus building route.

I don’t fully disagree with him. He is concerned that marriage equality will be like abortion rights and even after a win at the US Supreme Court, we will see our rights constantly under attack and we will lose ground. I’ve mentioned this type of thought a few times over the years on this blog, but I think the marriage equality case is so very different from what happened in Roe v Wade, that I’m not ready to say that it will “not end well,” as he does.

I got the impression this guy is pretty young, but he has a grasp on history as well as he was passionate in our conversation. He is an example of our future leaders. What to make of his points? Are we failing to use our American Democracy by not placing more emphasis on passing marriage equality at the ballot box? I want to share a few thoughts about this.

A person’s constitutionally protected rights should never be put up to a vote

It isn’t hard to find lots out there which well describes how and why marriage equality is a civil rights issue where discrimination is perpetuated by State governments strictly because of sexual orientation and who we love. Bans on same-sex marriage deprive women and men of equal treatment under the law. The US Supreme Court is the highest level arbitrator of laws- are the laws constitutional or not. The American Bar Association puts it this way:

The potential range of federal jurisdiction outlined by the Constitution extended to all cases arising under the Constitution, federal statutes, and treaties.

And the Supreme Court itself says this:

The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.

While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

So the question has been put into the courts- are bans on same-sex marriage constitutional or not, and the decision is moving towards the US Supreme Court which is the appropriate avenue for cases regarding the constitution and civil rights.

Does the ballot box work anymore?

While public opinion polls show that more and more Americans support LGBTQ Rights and specifically marriage equality, this won’t translate into major wins at the ballot box. Here’s why:

  • So few people actually vote. Even the weather impacts on how many people get to the polls.
  • Even if the total number of people supporting marriage equality is rising they may not be distributed across voting districts such that any vote may reflect that.
  • To get initiatives on the ballot and properly lobby for it requires enormous amounts of money.
  • But basic civil rights ought never be put up for others to decide if they should be honored or not. While voting is a critical cornerstone of our political system, so is the Constitution, and the Constitution always takes precedence.

Some questions are strictly legal in nature

Some of the cases that have ended up in court are very strictly judicial in nature such as cases in Ohio where the legal case is about survivorship, or right to second parent adoption, or death benefits. There are very specific legal challenges rather than a broad question about if same-sex marriage is good or bad. There would be no way for each of these distinct legal questions to become ballot questions to be decided by voters. Some cases are broader legal questions. There are 78 cases spread out over 32 states currently. Some may be answered by raising a ballot initiative, but many would not.

Same-sex marriage is not like abortion

It is ludicrous to compare abortion and marriage equality except to say that they are both controversial issues.

Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision by the United States Supreme Court on the issue of abortion. Decided simultaneously with a companion case, Doe v. Bolton, the Court ruled 7–2 that a right to privacy under the due process clause of the 14th Amendment extended to a woman’s decision to have an abortion, but that this right must be balanced against the state’s two legitimate interests in regulating abortions: protecting prenatal life and protecting women’s health.

Because the (Roe v Wade) decision rests on a right to privacy is extremely different from marriage equality which hinges on two others ideas, but predominately equal treatment under the law. Comparing the two is lie comparing apples and sea shells.

I don’t know anyone who is actually pro-abortion, although I know many, many who will fight vehemently for a woman’s right to make reproductive choices over her own body. I count myself in that group. In this way too, the issues are utterly different, even if the media or anti-LGBT groups try and make them out to be the same.

Same-sex marriage is banned as a way to harm gay and lesbian people and displays animus solely because of the sexual orientation of the two in relationship. There is no decision here for the court to rule on- there is nothing similar to a “woman’s decision to have” 

Unequal treatment across the country

There are states that have gained marriage equality through the ballot box at least indirectly through legislation and votes by elected officials. This is a critical part of our democracy. And at least partly because of this, there is now an uneven set of rights ad complications created. How is it that a couple can be legally married in one state but move to another state and their marriage is invalid? This inconsistency across the country is another reason why this issue is headed to the US Supreme Court.

Opponents will still fight equality but not like abortion

It may be true that no matter how marriage equality is achieved, there will remain opposition for many years to come. Maybe, but maybe not. I live in Pennsylvania, were our governor chose to not appeal a court’s decision which struck down PA’s version of DOMA. And regardless of the hyperbole used by anti-LGBT opponents, the sky hasn’t fallen in nor anything else bad happened. In fact whatever opposition they might be, it is all quirt here in the Keystone State. I think there is a good reason to believe that when SCOTUS finds marriage bans unconstitutional, that the opposition will grow quiet pretty quickly.

But opponents still have avenues to discriminate and harm LGBTQ persons and our families. Only 21 states ban discrimination in employment based on sexual orientation and/or gender identity and expression. In terms of other protections it is also a mishmash across the country. My prediction is that we will have state-accepted discrimination long after we have marriage equality across all fifty states, and this is definitely a problem. But it is not like the way anti-abortion restrictions have expanded. The anti-women’s choice efforts which are manifest in abortion restrictions are part of a larger male dominated heteronormative pattern of control that uses moral judgment as a smoke screen mask the economic and anti-woman nature of the issue. Prohibiting abortion keeps the poor poor and women’s liberation restricted.

Even though a moral argument is used against same-sex marriage, it is quite different. There is a claim of religious importance, but the same Biblical texts prohibit divorce yet there are no efforts to end legal divorce. In other words, the moral smoke screen against same-sex marriage is less believable or supportable and the general public can’t be fooled or controlled in the same way as in the abortion issue.

There is harm to gay, lesbian, bi, trans, and queer persons because of a lack of discrimination protections. Cake bakers may refuse to bake cakes for example. But the power of the economy can play a role today where, in past civil rights struggles those facing discrimination were more economically underprivileged. I don’t mean to downplay the problems with discrimination, only that the issue may not be alike past struggles. Time will tell.

I loved having a spirited and meaningful dialogue on Twitter, and happy for the opportunity to talk at greater length about the questions at hand.

What do you think? Should efforts and resources be spent towards getting marriage equality accepted at the ballot box? Do you think there will be repercussions in the form of more restrictive legislation following a Supreme Court win similar to what happened following Roe v Wade? Is the marriage advocacy community doing enough to build consensus and strong bond of support in the larger community? What more do you want to see done?

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