The Case for a Referendum on Gay Marriage

From nmcourts.com

“…It is for us the living, rather, to be dedicated here to the unfinished work, … that government of the people, by the people, for the people, shall not perish from the earth.”

— Abraham Lincoln

If you made a list of the issues which have defined American political debate in the last 20 years, few have split American voters more than gay marriage.

I’ll state my personal opinion up front: I support gay marriage. I believe that gay marriage is a liberty which does not unreasonably limit everyone else’s liberty. But I have listened to the arguments of friends against gay marriage and think that they are well reasoned and sincere.

I do not propose to persuade anyone to my line of thinking. Rather, I would like to propose a measure that I believe could greatly decrease the ill will surrounding the issue while simultaneously strengthening American democracy.

I propose a national referendum on gay marriage in the United States.

By “referendum,” I mean a national process in which any citizen can express an opinion for or against a measure by voting. This would likely take the form of “Do you think gay marriage should be legal in the United States?” Add up the yeses, add up the nos, and you have a census of the American people on this issue. Afterwards, there would be a commitment from Congressional leaders to discuss legislation on the issue in light of the people’s vote.

My primary reason for proposing this measure is that, until now, the issue has largely been decided by the courts. In a historic 2015 decision, the Supreme Court struck down a state law which banned gay marriage as unconstitutional. This decision, made by nine men and women with law degrees from just three schools in New England and New York, essentially created a federal policy without it ever receiving a vote in our national legislature. Gay marriage is now effectively legal throughout the United States, since any law against it is considered unconstitutional by the nation’s highest court.

That’s not democracy. It’s oligarchy. I believe that America’s democracy and political unity are weakened by relying on courts to resolve such legislative issues. This is a body of nine men and women who not elected by any democratic process and hold office for decades. When they make decisions which restrict all future laws passed in each of the separate states, that violates the spirit of our constitution. The Supreme Court is meant to define and defend what the constitution means through decisions on specific cases under existing legislation. It is not meant to discover new rights unimagined by the writers of the constitution or its amendments and enshrine them in American law without the consent of the people.

Don’t get me wrong — I love the Supreme Court. I think it is entitled to the highest respect and that its judgment in any particular case should be final. Re-trial for the same crime is prohibited in our Constitution, and with good reason. If the Supreme Court rules that Harry stole Maria’s land, even if I disagree, Harry should follow the instructions of the court in reimbursing Maria. But such a judgment should not prevent state or federal legislatures from making laws which correct similar injustices in the future.

It is foolish to allow the Supreme Court to make such legislative decisions for the entire nation. It may please the group which supports the court’s decision, but nobody else is convinced. Look how contentious the court’s decision to legalize abortion in Roe v. Wade still is, 35 years down the line.

So why not let states resolve the issue on their own? I respect this argument — I think local solutions are better in most cases. But in this case, the issue has already been nationalized by years of debate and most importantly by multiple Supreme Court rulings on the subject. The Supreme Court has ruled that states are not free to make laws about gay marriage. Unless something is done in our “supreme” legislature to change that, any state laws prohibiting gay marriage will be struck down as soon as they are made.

Isn’t a referendum unconstitutional? On the contrary, there is nothing in the US Constitution which forbids a nationwide referendum. There is no established process for it, but I don’t believe that is a serious impediment. Australia had a 2017 referendum on gay marriage, which was its first referendum. Because it had no legal procedure for a nationwide vote on a single issue (like the United Kingdom does), it simply conducted a “postal vote” in which each citizen sent their vote in the mail. The legislature had no legal responsibility to accept the outcome but promised to do so and, when the votes came back overwhelmingly supportive of gay marriage, the Australian legislature established it as national law.

Why don’t we make Congress vote without a referendum? I believe that Congress is deeply hesitant to make a final decision on this issue, and with good reason. If Democrats control Congress and legalize gay marriage, they will be accused of forcing the institution on an unwilling public. If Republicans do the opposite, they will be accused of depriving citizens of an institution which the majority supports. And any Republican who votes for gay marriage (or Democrat who votes against it) would be flattened in the next primary election, given the deep partisan divide on the issue, so we cannot expect a bipartisan vote without something like a referendum.

But since polls generally show 60–70% of Americans support gay marriage, isn’t a referendum unnecessary? I don’t believe the Supreme Court should be legislating for the country. I believe in government “of the people, by the people, for the people.” I believe that we are better off when we rely on the judgment of the majority of citizens in simple and divisive issues rather than referring them to judges or experts. I believe that this nation is still dedicated to the proposition that all men and women are created equal, whether judge or mechanic, and we can trust them to cast equal votes on a national issue which requires no technical knowledge and has no objectively clear answer.

I call on American politicians to consider this measure. If the House of Representatives and Senate passed a bill providing for the referendum, then promised to debate the results in their respective houses, I believe that the resulting legislation could go a long way toward reducing partisan ill will and increasing the strength of American democracy.

To any readers — what are your thoughts? Would this be a wise measure?

“I do not understand one thing in this world. Not one.” — Marilynne Robinson, ‘Gilead’

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