In our democratic republic, we vote on rights all the time. On Nov. 6, citizens in 38 states voted on ballot questions inviting them to legalize marijuana, end the death penalty, ban affirmative action, permit assisted suicide, bar public funding of abortion, reject an individual health-insurance mandate, and eliminate teacher tenure, to mention just a few. The rights of immigrants, of gun owners, of gamblers, of criminals, of union members, of homeowners, of taxpayers – all of them and more have been the subject of ballot initiatives and referendums in recent election cycles. And they in turn are only a drop in the bucket next to the flood of votes routinely taken by legislators – federal, state, and local – that have a direct impact on the rights of individuals and groups.
Resolving thorny legal controversies through the political process can be frustrating and upsetting, all the more so when people feel that their fundamental rights are at stake. But the only alternative is to resolve them through fiat, as the Massachusetts Supreme Judicial Court did in 2003 when it conjured a right to same-sex marriage out of the state constitution. Or as the US Supreme Court did 30 years earlier, when Roe v. Wadepurported to settle the question of abortion by taking it away from voters and legislators. Abortion, you may have noticed, is more unsettled than ever. Stifling the political process rarely leads to democratic harmony.
"Rights should not be put to a vote," same-sex marriage advocate Evan Wolfson, the founder of Freedom to Marry, was still insisting the day after the election. But I suspect we'll be hearing that argument less and less, as activists embark on fresh ballot campaigns to amend the many state constitutions that now block same-sex marriage. Unless, of course, the Supreme Court intervenes, and tries once again to impose a resolution by short-circuiting the workings of democracy.
I don't claim that voters are always right, or that the people can't make mistakes. By my lights, voters in Maine, Maryland, Washington, and Minnesota made a grave one last week. I believe same-sex marriage is a bad idea. But I also believe that political legitimacy derives from the consent of the governed. "I know no safe depository of the ultimate powers of the society but the people themselves," wrote Thomas Jefferson after a lifetime in public affairs. "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."
Gay marriage shouldn't be treated as sacrosanct, too lofty for mere politics. Let the debates, the struggles, the compromises, and, yes, the votes continue. Until the people work it out politically, this issue will never be settled.
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