Same-Sex Marriage Referenda

I started thinking a bit more about the votes in Maine and Washington on Tuesday, and in California last year.  The founding fathers never envisioned or wanted the rights of a class of people put up to a popular vote.

There will always be classes of people who are less popular than others.  Do we really want the rights of those groups to be decided by a majority vote?  I submit that we do not.  It’s tyranny of the majority.  The founding fathers were quite concerned about this possibility.  It looks like their concerns were well founded.

We have equal protection under the law in this country for a reason.  These referenda are simply about a majority keeping a minority from enjoying the same rights and protections that the majority has.

We’ve seen the same thing over and over in our history.  We’re seeing it again now.  Some groups were denied their civil rights and had to fight the status quo to gain them.  Gays are fighting an identical battle right now.  The majority should not have the right to keep a specific group down.  We’re supposed to be better than that in this country.  But we’ve forgotten the 1960s, it seems, only 40 or so years later.

I just came across an Andrew Sullivan post about popular sovereignty and what a crock it is as applied to rights.  Either everyone is created equally and we live up to that standard, or they’re not, and Orwell was right in thinking that some animals are more equal than others.

Just last week I finished teaching the Lincoln-Douglas debates, and when I read the Rod Dreher post you linked to, I immediately thought of Stephen Douglas’s arguments for “popular  sovereignty” — the notion that states, especially former territories entering the Union,  could vote slavery “up” or “down” as they saw fit.

Lincoln saw what a fatuous argument “popular sovereignty” was — that it really is the destruction of self-government to allow fundamental rights to be determined by the whims of a majority. The Declaration precedes the Constitution. “All men are created equal” is the necessary preface to “We the People.”

Equal rights and the consent of the governed are the principles that make self-government intelligible in the first place. Without them, of course, there are no real limits to what majorities can enact, including doing away with democratic rule. This is why Lincoln repeatedly said that lurking in Douglas’s doctrine of popular sovereignty were the same arguments used to justify the divine right of kings. Once “all men are created equal” is dispensed with, once it is no longer held to apply to a certain group of people, what might limit the arbitrary rule of a few, or one, over other groups without their consent?

I understand, of course, the “legitimacy” victories in the democratic process confer on any movement. But for me, the legitimacy of the love and relationships of gay couples already is there. It’s a right, grounded in our basic equality. And no majority should be able to take that away. So there’s a real ambivalence here.

Here’s one of my favorite Lincoln quotes, from an 1855 letter to Joshua Speed:

“I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor or degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it “all men are created equal, except negroes.” When the Know-Nothings get control, it will read ‘all men are created equal, except negroes, and foreigners, and Catholics.’ When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty — to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.”

Insert “gay” for “negroes” in the above and my point is made. His logic resonates still.

No historical analogies are perfect, of course. But this is a great irony, no? The Party of Lincoln is now aping the discredited arguments of Stephen Douglas (and for that matter, John C. Calhoun).

One other thought.  I am disgusted by the DNC and President Obama.  Their indifference to our rights is appalling.  Well, Mr. President, we’re ever so sorry to bother you with our humanity and our need for equal rights.  My boycott of giving Obama and/or the DNC any of my money is intact, so long as DADT and DOMA are still the laws of the land, and as long as they don’t begin to stand up for our civil rights as much as we stood up for their elections last fall.  I’m not asking them to win our rights for us, just to deliver on the promises they made.  And, by the way, I’d like the gay rights groups — like HRC — to hold the president to his promises and to stop being taken in by cocktail and dinner parties.