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."
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