By Lisa Regula Meyer
We’ve recently seen judges move more and more quickly to rule on the side of equality in cases involving same sex marriage bans and the like, with the recent Texas case being a great demonstration of just that move forward. I’m in Ohio, where we have a similar ban in the state constitution defining marriage as one man and one woman, dating to a 2004 referendum that initiated this current state of affairs. In Ohio, we’re moving to put another referendum repealing the original ban and instituting marriage equality on the ballot soon, although there has been some discussion about timing and valid signatures and all the fun of a tooth extraction that is politics. But we’re getting there, slowly.
I thought it might be worth taking a minute to consider what got us here in the first place, though- referendum votes and constitutions, namely.
Not all states work the same on how they address referendum votes, which is part of the difference in how states enacted same sex marriage bans, and why we have a fairly hodge-podge collection of methods needed and used to achieve marriage equality. The history of the referendum is rather interesting, as well. There’s not a big emphasis on referendum and procedures in our national Constitution for a reason- it wasn’t seen as a very important part of the workings of government. This might seem odd, given the populist sound of the founding documents with their “We the people,” democracy, Bill of Rights and whatnot; remember, however, that these were the same people- many of them slave owners- who instituted the electoral college as a “check” on the popular will and developed a bicameral legislature as part of a complex three branch government with additional checks and balances. It’s good to remember also that the United States, for all our talk of democracy, we are a republic of states with representative voting, which uses democratic principles but is not a simple democracy. The Founding Fathers seem not to have trusted people all that much (not surprising, given their history with the legislators and crown in England), or they simply realized the fallibility of people.
No, it wasn’t until the late nineteenth and early twentieth century that the referendum came into greater usage, as a part of populist movements wanting to limit the power of a government that was seen as out of touch, especially after the Coinage Act of 1873 that eliminated bimetallism (having nothing to do with AC/DC, I swear). You can find a more detailed history of referendum and initiatives here. (Aside- You can also find a bit of modern populism and shameless self promotion here, if you feel like seeing what my students are up to.)
So what does any of this history lesson have to do with marriage equality, you ask? Well, in part, it’s simply a reflection of the fact that my husband is absorbed in his doctoral candidacy exams in history right now, so that’s where my head has been, listening to him talk about some of these concepts. At the same time, it has a lot to do with marriage equality because it points out quite well how our complicated system of governance is actually quite pragmatic. You see, in a democracy there is truly the will of the majority that is being reflected in the laws. This isn’t always a good thing, as majorities don’t have a stellar record of upholding rights of the minority. Think “mob rule” and you might get a better sense of what I mean. For protecting the rights of humans we have the Bill of Rights, and internationally there’s the Universal Declaration of Human Rights, which the US voted in approval and the UN adopted in 1948. In the US, our governance is not special because we have rule by the majority, our system is special because we have an official protection of minorities (or subalterns, to be more respectful and use a historical term) FROM the majority.
Of course, there are fights about what subaltern groups get protection, in part because of acceptance of the false idea that rights are a zero-sum-game, and there are fights about what is a “right” versus a “privilege” but the fact that we’re having these discussions puts us light years ahead of where our country started. Ironically, the referendum- a mechanism meant to ensure that the majority got their say and we did not fall into an oligarchy or plutocracy- has been co-opted by the majority to strip subalterns of their rights in the case of bans against marriage equality. Unironically, and quite optimistically, we’re now seeing that move to the right being reversed as the judicial branch of government weighs in to exert its checks and balances on the legislative process.
It’s a rough process, acknowledging rights and the fact that you were wrong to do what you did, but most processes of growth are difficult. And this is growth as a society, recognizing the diversity of people who share our country and respecting them as equals. No matter what the timing or outcome of any Ohio referendum on marriage equality in the future, change is coming sooner or later, as we come to the correct conclusion that it’s not right to put rights to a vote.
Photo Credit: Aditus Foundation