The Main(e) Thing

So my friend Trina, Ms. Community Organizer Extraordinaire, has spent the better part of the past year schlepping across the great state of Maine trying to mobilize Mainers to protect marriage equality for their LGBT family, friends, and neighbors. Despite her and many others valiant efforts, on Tuesday the people of Maine voted to repeal their state legislature's decision to legalize gay marriage.

Some of the commentary that followed this decision focused on how, thus far, the states which allow for gay marriage have created this permission through judicial or legislative channels (and Maine was originally in this camp as well, as their state legislature passed a law to make gay marriage legal). Had Proposition 1 failed, Maine would have become the first state to affirm/allow legalization of gay marriage via a popular vote as well.

This has all prompted two questions in my mind:

First, is such analysis discounting "silent majorities?" I mean, so Maine and California have both taken legislative or judicial action which have been subsequently repealed by a popular vote. But states like New Jersey and Iowa have taken similar actions through similar channels and have not had those decisions challenged by a popular vote. Is it then fair to say that the failure to produce a proposition to repeal indicates a tacit public acceptance or approval of these actions? Will we give Iowa and New Jersey's silence and inaction on this matter the same weight as we've given to Maine and California's vociferous and controversial actions to repeal? In other words, is not bringing it up for a public vote a de facto popular vote victory? And if so, why aren't we saying that out loud?

Second, and more importantly (and I don't know why this never occurred to me sooner), why it is, in fact, so terribly important to make gay marriage legal with a popular vote?

I mean, maybe I misunderstood something in my high school civics class, but I've always been under the impression that our government was created with an intentional set of checks and balances, which were meant both to prevent one person (or group of persons) from assuming too much power, and to protect the rights of the minority. When a miscarriage of justice is committed by one branch of our government, the other branches have the right and obligation to correct or amend it; similarly, when a miscarriage of justice is committed by the larger society, the government has the right and the obligation to both correct that injustice and to protect those victimized by it.

Or to put it another way, when a popular vote denies equal protection under the law, it remains the government's job to provide it.

Which begs the question - are some judges "activists legislating from the bench," as some folks so often complain, or are these judges simply doing their job to ensure equal protection under the law? Where would we as a society be without the "activist" judges behind decisions like Brown v. Board of Education or Loving v. Virginia? And similarly so, where would we be without "interest group" legislation like Title IX, or the Americans with Disabilities Act, or the 14th, 15th, and 19th amendments? And where would we be if Presidents Dwight D. Eisenhower and John F. Kennedy had not boldly employed their executive powers to secure both the physical safety and constitutional rights of the Little Rock 9 and James Meredith, respectively? When popular opinion or vote denies equal protection under the law, it is the government's responsibility to provide it.

And that, to my mind, is what is going on here. LGBT people are currently being denied equal protection under the law, insofar as marriage allows one certain legal rights in relation to one's partner and any offspring or property shared with said partner. As such, it is entirely within the rightful sphere of influence of any branch of our government to correct or amend this injustice, regardless of the public's opinion, or official vote, on the matter. Now, I suppose you could debate whether or not marriage is an inalienable right that must be guaranteed to all people, but that's an entirely different argument than claiming the branches of government have no business acting outside of "majority opinion" on this issue.

So, while winning a popular vote to legalize gay marriage would certainly signal a "turning of the tide" as to whose opinion is perceived to be "majority," and while it should in theory, at least, shut down complaints about "activist judges" - I guess I don't see it as so crucial to legitimize actions taken by our government to protect our fellow citizens.

But then again, I'm an Upper Midwestern progressive, I'm predisposed to like government and believe in its potential to make the country and the world a better place to live. . .

Peace,
C.