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.

It was Election Day yesterday.  People went to the polls to elect governors in New Jersey and Virginia, and members of Congress in New York and California.  Voters in Maine also decided a ballot measure on same-sex marriage.

I mostly want to talk about the referendum in Maine, but first a word or two about the votes in New Jersey and Virginia.  I disagree with the notion that these votes were somehow a report card on President Obama’s performance.  That, of course, isn’t to say that no lessons should be drawn from this election, just that the media are making mountains out of mole hills (or at least small hills), as they are wont to do. 

Let’s take Virginia:  Virginia voters have, for the past five gubernatorial elections, elected the opposite of the party controlling the White House.  If a Democrat won the White House, the Virginia Governor’s Mansion always went to a Republican, and vice-versa.  And that isn’t even mentioning the absolutely dismal campaign that Creigh Deeds ran.  In New Jersey, voters rejected the status quo and the corruption under Jon Corzine.

Now to Maine.  Same-sex marriage was repealed in Maine by a vote of 53 to 47 percent.  That margin is nearly the same as the margin on Proposition 8 in California last year.  A same-sex marriage law had been passed by the legislature and signed by the governor earlier this year.  The law had been suspended pending the outcome of the election.  This means, of course, that supporters of same-sex marriage have never won at the ballot box.

I think it shows that voters are still too easily swayed by what amounts to propaganda about same-sex marriage and that people are still caught up in traditional definitions of what makes a marriage.  People still can’t seem to separate religious and civil marriage, which are two distinct and separate things.  Until people see that distinction — which is blurry to many — we’re going to have these defeats at the ballot box.  I’m heartened, though, that same-sex marriage continues to win in court.  I think that the real victory will come in the legal system, just as the anti-miscegenation laws were struck down by Loving v. Virginia.

Just as I was disgusted by the proponents of Yes on 8 (the no same-sex marriage crowd), I am similarly disgusted by the absolute disregard for people’s families that is being shown by the Yes on 1 campaign in Maine.  Take a look at some comments from Matt Barber.  They’re not pretty, but they show exactly what the anti-gay referenda are really about — homophobia, pure and simple (Hat Tip:  Pam’s House Blend – emphasis in Pam’s post).

Matt Barber, Director of Cultural Affairs with both Liberty Counsel and Liberty Alliance Action, issued the following statement on news that the voters of Maine have rejected counterfeit “same-sex marriage” by 53% – 47%:”There’s good news and bad news here,” said Barber. “The good news is that even in one of the most liberal States in the Union, Maine, the people have once again rejected the ridiculous and oxymoronic notion of ’same sex marriage.’ The momentum has again shifted – hopefully for good this time – in favor of protecting legitimate marriage. A counterfeit is a counterfeit. An orange is an orange no matter how much you want it to be a turnip. This isn’t about ‘marriage.’ It’s about hurting and broken people desperately seeking affirmation of an objectively deviant lifestyle. One that, even in their heart of hearts, they know to be a dead end. As for the militant ‘No on 1′ homosexual activists? I’m reminded of spoiled children dressing up and playing house, refusing to come in when mom calls for dinner.

“Here’s the bad news. The margin of victory could have been greater. Many behind the ‘Yes on 1′ campaign, rather than simply telling the truth, chose the Neville Chamberlain approach. They merely circled the wagons around the word ‘marriage,’ even suggesting that ‘domestic partnerships’ (‘gay marriages’ by another name) are acceptable. This makes no sense. If that’s a viable compromise, then why not simply allow ‘gay’ duos the word ‘marriage’? It’s an incongruity that demands an explanation. This is an historic battle for the minds and souls of our children – for our very culture. The mealy-mouthed approach must end. This is not just about ‘marriage.’ It has everything to do with forced affirmation of homosexuality – under penalty of law. Indeed everyone who fought hard to defend marriage in Maine is to be congratulated, but if it weren’t for a brave group of truth tellers – Paul Madore, Peter LaBarbera and Brian Camenker – who came to Maine in the final hour to hold a press conference and address the pink elephant in the room – homosexual deviancy and the radical ‘gay’ agenda – counterfeit marriage might have prevailed.”

I don’t know how else his comments can be construed.  They’re simply homophobic and show what the anti-gay referenda are really about.  It seems to me that they’re about hate.  They hate gays and any perceived (even if it’s not true) invasion of the little boxes into which they want to put people.  As Pam notes in her post:

The fact is that it was, yet again, not yet time to test equality when put to a popular vote. It is proof, yet again, that civil rights should never be decided by mob rule — but the hateful people behind Yes on 1 capitalize on spreading fear — suckling pigs at the teat of dying, mud-covered sow of homophobia.  The hog is going to die.  Hate alone cannot sustain that beast.

We should find solace in the fact that the children and grandchildren of those who voted to rollback the rights of fellow Mainers will be embarrassed that their relatives were so short-sighted, duped by entities that exist solely to discriminate using the ballot box as a weapon — and making money off of the hate with great gusto.

Pam’s right.  People are going to look back in a few decades and wonder what all the fuss was about.  They’re going to look askance at their grandparents and wonder why they were so bigoted.  It’s going to be the same thing as what happened with inter-racial marriage a few decades ago.  Most of us wonder what the fuss was about.

So this is a major disappointment.  But we’ll get over it, learn from it, and keep advancing the cause of equal rights for LGBT people in America.  I still think the major victory is going to come in the courts, maybe even the Olson/Boies case now pending in federal court.  But whichever way it happens, it will happen.  It’s as inevitable now as it was when Gavin Newsom stupidly opened his fat mouth in 2004 and declared it so.

UPDATE: I just read David Mixner’s excellent post on yesterday’s election results in Maine.  He called the campaign against gay rights “gay apartheid.”  I agree.  I also agree that it is reprehensible for President Obama to sit on the sidelines.  I’ve been worried all year that maybe we have lost a major opportunity to repeal DOMA and DADT.  We’ve gotten some legislation, but DADT and DOMA are the big, consequential pieces of legislation that have to be repealed.  What is going to make Obama work on our behalf now?  I’m tired of half measures and getting patted on the head and told to go away.  I’m tired of politicians who do that.  I’m beginning to be sorry I worked for and voted for Obama last fall.  I’m beginning to be sorry I thought that he was different.

The Des Moines Register fielded a poll on same-sex marriage.  Its report was in the newspaper yesterday.  There were two things that jumped out at me as I read the article, and they seem to be disconnected to me.

Des Moines Regiser Graphic

First, Iowans are evenly divided on the question of whether to ban same-sex marriage.  As you can see in the graphic above:

Forty-one percent say they would vote for a ban, and 40 percent say they would vote to continue gay marriage. The rest either would not vote or say they are not sure.

The most intensity about the issue shows up among opponents. The percentage of Iowans who say they strongly oppose gay marriage (35 percent) is nearly double the percentage who say they strongly favor it (18 percent).

That’s all fine; I don’t have an issue with the numbers on their face.

Des Moines Regiser Graphic

But here’s where the disconnect comes:

The overwhelming majority of Iowans — 92 percent — say gay marriage has brought no real change to their lives.

So here’s my question.  If you’re not affected by your gay neighbor’s marriage, why in the world would you vote to ban it?  That smacks of spite, or simple bigotry, to me.  I don’t care if you dress it up in religious terms.  It would be a vote to remove a right from a distinct group of people based solely on the characteristics of the group.  That’s discrimination on its face, and is wrong.

It proves same-sex couples’ point — we’re not out there trying to gain special rights, and we’re not out there trying to change people.  We simply want to live our lives with the same — same, not different — legal protections that our heterosexual parents and brothers and sisters and friends enjoy.  And most importantly, our marriages and relationships cause absolutely no harm to anyone else’s marriage or relationship.

So it’s time to grow up, America.  Stop hiding behind religion as a cover for discrimination.  I don’t have a problem with anyone’s religious beliefs; anyone is free to believe in what they want in America.  It’s a free country (for some).  But my wise high school government teacher taught me that my right to move my elbow ends at the rib cage of the person next to me.  The same thing applies to religion.  People are entitled to their religious beliefs, but they’re not allowed to make them impact me.  But that is what’s happening in America now, and it’s time for it to end.

There is some hope, though, that people’s opinions are moving our way.  See Nate Silver’s analysis on the changing attitudes on same-sex marriage in America.  Attitudes are changing, albeit very slowly. 

The Obama administration came out today and said that DOMA is wrong and is discriminatory.  The Department of Justice is, however, still defending the law in court, saying that the DOJ has to defend laws it doesn’t agree with.

President Obama made clear Monday that he favors the repeal of the Defense of Marriage Act, and intends to ask Congress to repeal the 13-year-old law that denies benefits to domestic partners of federal employees and allows states to reject same-sex marriages performed in other states.

Obama has long opposed the law, which he has called discriminatory. But his Justice Department has angered the gay community, which favored Obama by a wide margin in last year’s election, by defending the law in court. The administration has said it is standard practice for the Justice Department to do so, even for laws that it does not agree with.

The Justice Department did so again Monday in its response in Smelt v. United States, a case before a U.S. District Court in California. But, for the first time, the filing itself made clear that the administration “does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal.”

Some people have said that the DOJ doesn’t have to defend a law it doesn’t agree with.  I’m not so sure about that.  It seems to me that laws that have been duly enacted have to be enforced.  (But as I’ve said over and over, I’m not a lawyer and if I’m wrong about this, please correct me.)  The tone that’s taken, though, when defending a law is another matter entirely.  The Obama DOJ’s previous defense of DOMA was a slap in the face. 

The brief today strikes an entirely different tone.  This seems to me to be a repudiation of the earlier DOMA brief (linked above).  I still haven’t seen the president call on Nancy Pelosi and Harry Reid to get a bill repealing DOMA (and DADT) passed, though.  So this is welcome, but it seems a bit weak at this point.

And as for what this brief means, see Law Dork:

For those, reasonably, asking if this brief in any way “takes back” the earlier, problematic arguments made in the previous DOJ Smelt brief, it does not.  But, what it does do is put that brief in context of the Administration’s opposition to the policy aims of DOMA.

In order to get a full picture of the Administration’s changed approach on defending DOMA, we will need to wait until mid-September, when the Justice Department files its Motion to Dismiss in Gill v. Office of Personnel Management et al., the Massachusetts GLAD case.  I previously discussed the Amended Complaint filed in the case by GLAD earlier this month.  The government’s response to the Complaint is due by Sept. 18.]

So, we wait on the legal front, for this brief.  And we continue to wait on the legislative front for this administration to get off the dime and actually do something for the gay community.

So it’s been decided at the highest levels of the “gay establishment.”  We will wait until 2012 to try to repeal Proposition 8 in California. 

For the first time, we have the opportunity to choose the best time to go back to the ballot, and we strongly think 2012 is the way to go.

I suppose the thinking is that because it’s a presidential election, the turnout will be stronger.  The thinking probably also goes that because Obama will be on the ballot again, we can ride his coattails to victory.  It’s an idea, anyway.  But in the meantime, we have gay and lesbian families who are unable to marry, who are unable to protect their families.  That’s not directly the fault of Equality California, although the No on 8 campaign was weak, to be kind.  It never should have come to this.  It wouldn’t have, if the No on 8 people had taken this seriously and treated it as a campaign that could have been lost rather than one that was in the bag.

I don’t doubt their assessment: Proposition 8 can’t be repealed in 2010 and we have to wait until 2012.  My point is that it’s a long time to wait.  Prop 8 will continue to be attacked on legal and constitutional grounds, and have some chance of winning there (to my non-lawyer’s mind).  And some people will still try to get the Prop 8 repeal on the ballot for 2010.  Will the gay establishment in California back them if they’re successful?  That’s an important question; we cannot lose another statewide referendum; it would be a calamity.

In the meantime, though, same-sex marriage is threatened in Maine.  No on 1 needs our help.