The Right Opinion

Gay Marriage at the Ballot Box

By Jeff Jacoby · Nov. 14, 2012

Supporters of same-sex marriage have reason to cheer after last week's election. Supporters of democratic self-government, even those of us who oppose gay marriage, do too.

On Nov. 6, for the first time ever, voters in three states – Maine, Maryland, and Washington – redefined marriage by popular vote. In Minnesota, residents said no to a constitutional amendment enshrining the traditional understanding of marriage as the union of a man and a woman. There is no denying the significance of these results: Previously the issue had gone to the ballot in 32 states, and in all 32 same-sex marriage was defeated. Gay-marriage advocates have insisted for years that it is outrageous to put what they consider a question of civil rights to a vote, but going 4-and-0 on Election Day presumably made the outrage a lot easier to swallow.

In nearly all of America, of course, marriage still means what it has always meant. Obviously a once-settled consensus has been changing, and last Tuesday may eventually prove to have been a tipping point. At the moment, however, there is no new consensus and it's anything but clear that the battle to redefine the core institution of human society is a done deal. The votes in Maine, Maryland, Washington, and Minnesota – Democratic strongholds all – were close, and in each one Barack Obama got a lot more votes than gay marriage did. Even in four deep-blue states, in other words, many voters who wanted to see the president re-elected drew the line at same-sex marriage.

Plainly the political and philosophical struggle over the definition of marriage isn't going away any time soon, no matter how much gay-marriage backers wish to declare the issue over. But now that gay activists have turned to the ballot and won, perhaps we can finally dispense with the claim that there is something unjust or illegitimate about deciding a question as momentous as marriage by referring it to the people (or to their elected lawmakers.)

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. Wade purported 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.

(Jeff Jacoby is a columnist for The Boston Globe. His website is www.JeffJacoby.com).

20 Comments

OldDaveNJ in Princeton said:

According to the arguments presented in this piece, the issues decided in Brown v. Board of Ed. and Loving v. Virginia should also have been decided by popular vote, state by state. Those cases also involved the overturning of state laws and provisions in state constitutions by judicial fiat. (It is probably no coincidence that many of those states that currently prohibit same-gender marriages and civil unions are the same as those who laws were overturned by Loving.) The fact is that the expansion of civil rights is frequently achieved ultimately by the courts, following a period of changing opinion and legislative victories.

Same-gender marriage strongly parallels interracial marriage, both in terms of the legal and sociological arguments and the way civil marriage laws are evolving to end harmful discrimination. These legislative victories do not (and should not) mark the end of judicial involvement in the the issue; they are a precursor to what I expect will continuing pro-SSM court decisions in the coming years.

Wednesday, November 14, 2012 at 12:07 PM

Joe Redneck in Maine replied:

Same gender marriage is nothing like inter racial marriage. Same gender marriage has more in common with bisexuality, incest, polygamy and polyamoury. Every argument in favor of gay marriage can be used by the other four groups. Gay marriage laws discriminate by granting the privilege of marriage to a very specific group of individuals who choose to participate in a very specific aberrant sexual behavior. Once marriage has been redefined, there is no argument left to defend against incestuous, bisexual, polygamous or polyamorous individuals from claiming THEY are being discriminated against. It's only a matter of time until anyone can marry anyone else for any reason. Marriage involves responsibility. The government wants to be responsible for everyone.That will be the end of marriage as we know it. That is the ultimate goal of the Leftists. Destroy marriage, end personal and family responsibility, make everyone dependant on the Feds. So sad.

Wednesday, November 14, 2012 at 1:00 PM

OldDaveNJ in Princeton replied:

Sexual orientation is no more a choice than race. The desire to marry somebody of a different race is no LESS a choice than wanting to marry somebody of the same gender ... except that homosexuals can enter into healthy, successful, state-recognized marriages ONLY with people of the same gender. That is the only substantive difference between the two ... and it makes laws against same-gender marriage even more discriminatory than antimiscegenation laws ever were. That is not true of ANY of the other kinds of relationships you cite. Also, bisexuals are no more likely to want to enter into marital relationship with multiple partners at the same time than straight or gay people; you might want to read up on a topic before commenting. It's also not even clear that polygamists are discriminated against under current laws, at least as discrimination is defined under the Equal Protection Clause of the 14th Amendment, since they can marry any one of their partners and obtain benefits on a par with anyone engaged in a two-person marriage.

Wednesday, November 14, 2012 at 2:46 PM

Joe Redneck in Maine replied:

There is no proof that gays are born that way, absolutely none. Every other kind of relationship I have stated is a relationship between consenting adults, EXACTLY the same as homosexuals.There are many instances of homosexuals being cured , therefore it is an aberrant sexual behavior of their choice, exactly like bisexuality, polygamy incest and polyamory. Just because no bisexual has asked to marry a person of either sex does not mean they never will. Now they will be able to. The intent of these pro homo laws is to destroy traditional marriage.

Thursday, November 15, 2012 at 7:56 PM

OldDaveNJ in Princeton replied:

Numerous studies have convinced a large majority of scientists in the field that sexual orientation is largely determined by a complex interplay of genetics and intrauterine environment, set by the end of early childhood, and not something that people choose. Even Exodus International, probably the best known organization that promoted the idea that gays could be "cured," has given up on that notion. Also, FYI, bisexuality is not a choice either ... but I wouldn't be surprised if you don't even understand what bisexuality is in the first place.

Thursday, November 15, 2012 at 9:47 PM

Ted R. Weiland in Nebraska said:

Ask yourself: "How did sodomite "marriage" ever get to the ballot box in the first place?" When the constitutional framers renounced Yahweh's authority and morality for We the People's? Had the framer's expressly established the Republic's laws upon Yahweh's morality, not only would sodomites be back in the closet, any of them who would practice it openly would be in the grave (Leviticus 20:13).

Find out how much you really know about the Constitution as compared with Yahweh's morality as codified in His commandments, statutes, and judgments. Take our Constitution Survey at http://www.bibleversusconstitution.org/ConstitutionSurvey.html and receive a free copy of the 85-page "Primer" of "Bible Law vs. the United States Constitution: The Christians Perspective."

Wednesday, November 14, 2012 at 1:05 PM

Greg B. in Boston replied:

So death to gays is what you'd like to see. Guess where you can stick you silly little book of fairytales.

Wednesday, November 14, 2012 at 1:16 PM

READY4ACHANGE in ILLINOIS replied:

No, not death - but not marriage either.

Thursday, November 15, 2012 at 11:23 AM

OldDaveNJ in Princeton replied:

Maybe you don't want to see same-gender couples put to death, but Ted clearly does.

Thursday, November 15, 2012 at 11:35 AM

READY4ACHANGE in ILLINOIS replied:

I can't speak for Ted - but he is entitled to his opinion.

Thursday, November 15, 2012 at 12:41 PM

Chris in Wisconsin replied:

OldDaveNJ,

Ted didn't write the Law or prescribe the judgment for this sexual perversion, God did: Leviticus 20 13!

Friday, November 16, 2012 at 8:54 PM

Chris in Wisconsin replied:

Greg B.

Go ahead, keep giving The Great I Am the finger !! We'll see how well you make out. "Only a fool says in his heart, there is no God."

Friday, November 16, 2012 at 8:58 PM

Greg B. in Boston said:

Would Jeff feel the same way about a ballot question asking if Jews should have the right to marry? After all, we vote on rights all the time. This is just another failed attempt to veil anti-LGBT animus as some reasonable view of democracy.

Wednesday, November 14, 2012 at 1:10 PM

Gregory in Yakima said:

Putting this human right to a vote that won in three states validates some of Mr. Jacoby's observations. This vote to enlarge our concept of basic rights should and will be decided by the Supreme Court.

Ironically, it's the limited government advocates already on the court that will tip the balance in favor of repudiating archaic restrictions on same sex marriage.

Wednesday, November 14, 2012 at 1:39 PM

Marco Luxe in Los Angeles, CA said:

A prime rationale for our Constitution and its Equal Protection clause is to limit the tyranny of the majority. The majority can always democratically pass laws for their own benefit and to a minority's detriment so the framers knew there needed to be a brake on popular passions. Your failed argument ignores this essential fact of a constitutional republic.

P.S. I fear having the power to vote on the rights of the minority you belong to.... and we're all part of some minority, Mr. Jacoby.

Wednesday, November 14, 2012 at 3:01 PM

Robert in Texas said:

What therefore God hath joined together (under his laws), let not man put asunder (DEPART).

Ex 20:14: `Thou dost not commit adultery: miscegenation, sodomy, bestiality, incest among others are all the debasement (make impure - falsify Yah's Covenant Order) of something pure which the Creator has established as Wholesome.

Lev 20:
2 Again, thou shalt say to the children of Israel, Whosoever he be of the children of Israel, or of the strangers that sojourn in Israel, that giveth any of his seed unto Molech; he shall surely be put to death: the people of the land shall stone him with stones.

Heb 12:
16 lest any one be a fornicator, or a profane person, as Esau...
Genesis 26:
34 And Esau is a son of forty years, and he taketh a wife, Judith, daughter of Beeri the Hittite, and Bashemath, daughter of Elon the Hittite,
35 and they are a bitterness of spirit to Isaac and to Rebekah.

Ezra 9:2: For they have taken of their daughters for themselves, and for their sons: so that the holy seed have mingled themselves with the people of those lands: yea, the hand of the princes and rulers hath been chief in this trespass.

Ezra 10:
2 We have trespassed against our God, and have taken strange wives of the people of the land

Lev 20:13: If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.

Neh 9:
2 And the children of Israel separated themselves from every stranger, and stood and confessed their sins, and the iniquities of their fathers.

Deut 25:
5 ¶If brethren dwell together, and one of them die, and have no child, the wife of the dead shall not marry without unto a stranger: her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of an husband's brother unto her.

Judges 3:
5 And the children of Israel dwelt among the Canaanites, Hittites, and Amorites, and Perizzites, and Hivites, and Jebusites:
6 And they took their daughters to be their wives, and gave their daughters to their sons, and served their elohim.
7 And the children of Israel did evil in the sight of יהוה (YAH), and forgat יהוה (YAH) their Elohim, and served Baalim and the groves.

Gen 2:
23 And Adam said, This is now bone of my bones, and flesh of my flesh: she shall be called Woman, because she was taken out of Man.

Ex 12:49: One law shall be to him that is homeborn , and unto the stranger...

Wednesday, November 14, 2012 at 6:21 PM

mark in Utah said:

Excellent Article Mr. Jacoby, I believe the only way to settle this debate is to eliminate the state issuance of Marriage Licenses. Licensing Marriages came about as an effort to keep the races from mixing. This antiquated idea that the state needs to be involved in marriage should come to an end. Then it would be a religious ceremony for those who have that persuasion, and for those who do not have religious persuasion it can be contractual arrangement between individuals.

Wednesday, November 14, 2012 at 10:45 PM

OldDaveNJ in Princeton replied:

I am pretty sure that the majority of US citizens have in some way enjoyed the benefits and protections provided by the state through the institution of civil marriage ... beneficial tax options, social security survivor benefits, employer health plan protections for minorities, etc. All things that cannot be obtained through private legal arrangements between the two partners involved. While your proposal may seem reasonable, and has an element of fairness, the odds of it happening are extremely remote.

Thursday, November 15, 2012 at 8:02 AM

Chris in Wisconsin replied:

OldDaveNJ,

The more I read your comments, the more I'm convinced you're a double minded man, and "A double minded man is unstable in all his ways."

Friday, November 16, 2012 at 9:03 PM

Joe Rizoli in Framingham MA said:

What will a vote do? If the vote goes for gay marriage it will only show how perverse and morally corrupt and perverse America has become.
America is morally gone, Biblical judgement is the only thing left for those who like the Biblical Lot, are disgusted as he was by the moral depravity of his times.
Brian I am putting up some of the videos I videotaped for you.

Straight Talk about Homosexuality 17 min
Dr John Diggs

http://www.youtube.com/watch?v=OI2mTPiLvGs Part 1

http://www.youtube.com/watch?v=OI2mTPiLvGs Part 2

Thursday, November 15, 2012 at 1:39 AM