In ten days, we'll have the opportunity to flip the switch on one of the most cherished notions of the homophobic right: when "the people" get to vote on issues concerning the rights of the LGBT community, they always vote against us. So, especially for Kossacks in Maine, Maryland, Minnesota and Washington State, here are the best parts of a paper I gave for the first time in 2009,called "Initiative, Referendum and Inequality." In it, I showed that we should not have been surprised by what happened in the election of 2008 to bring us Proposition 8.
In July 2008, Edmund P. Brown, Jr., the attorney general of the state of California, renamed an initiative that was designed to undo the work of the state Supreme Court by amending the state constitution to define marriage as a union between a man and a woman. His title,
made it clear that this was a civil rights issue that would relegate gay men and lesbians to a form of second-class citizenship. It passed anyway, by a 52-48 margin.
This raised the question of how Americans have voted on issues of citizenship since the beginning of Progressive-era direct democracy reform and whether (and to what extent) American voting behavior has risen to the level of the tyranny of majority interests James Madison discussed in Federalist #51. I'll try to shed some light on it below.
For the first 100 years of the American republic, voters had to rely on their elected representatives to determine citizenship issues. As we know, the initial definitions, based on which Americans possessed political rights, excluded entire groups in American society: women, Indians, Africans and African Americans, and, after the Civil war, Chinese, Japanese and Filipino immigrants, and reflected a hierarchical understanding of the place of White Anglo-Saxon men with regard to the excluded groups.
Until the beginning of the twentieth century, such decisions were left to the president, Congress, and state governors and legislators. Then reformers of the Progressive era, secure in their belief that the bosses and political machines of the era inhibited the ability of citizens to govern themselves, proposed that direct democracy might be preferable to a legislature possibly beholden to corrupt influence. To achieve this, they implemented procedures by which the voting public could easily place measures on the ballot to circumvent the gridlock caused by legislators who were acting in the interests of special interests (usually in the private sector) -- does any of this sound like the way things are today? -- instead of for the people who elected them.
At first, these procedures were limited to some of the western states. California instituted its version of direct democracy in 1911; since then, Californians have been able to enact statutes, ordinances and even constitutional amendments by means of the voter-created initiative or to review measures initially passed by state or local legislatures by means of the voter-initiated referendum by a simple majority (direct democracy in California [and Wisconsin] also provides the electorate with the ability to recall elected officials, as we are so well aware, but this process does not raise any issues concerning citizenship). Supporters of direct democracy consider it the optimum way to express popular opinion.
(William Howard Taft, Robert MacCameron, 1909; National Portrait Gallery, Smithsonian Institution)
Opponents of the initiative process aren’t so sure. Specifically, they warned that its supporters might use it to deprive others of their civil liberties. As William Howard Taft observed from his chair at Yale Law School in 1914,
The contention is that a man has no rights, independent of the people with whom he lives, that he does not inherently possess personal liberty, the right to property, the freedom of religion, the right to free speech or that protection secured to him under the title of “due process of law,” and that these can be taken from him by legislative or executive action, if sanctioned by a popular vote, with the same ease and dispatch that the repeal of any ordinary law could be effected.
Taft was remarkably prescient. Since the Progressive Era, various initiatives have been proposed in the states that adopted the initiative process that seek to curtail the rights of minority groups: in Oklahoma, for example, black voters were disenfranchised by an educational requirement for voting which was not applied to whites with limited education in 1910, and California voters passed a law prohibiting ownership of land by “persons ineligible for naturalization” or their minor children who had been born in California, aimed at the Japanese, in 1920. In essence, these initiatives give the voters of these states the opportunity to represent citizenship by assessing which rights a minority group may have.
Review of direct democracy activities suggest that few measures which do so have been presented to voters and those that have have had a less than 50% chance of passage, although one such review states that “voters overwhelmingly favor direct legislation that repeals existing civil rights laws or precludes elected officials from making new ones.” The fact is that such measures have been placed on ballots in various states and cities, and the likelihood of passage is dependent upon which minority group is the subject of the measure. Since the beginning of progressive reform, states have voted to deprive basic civil rights to African Americans, women (in statewide referenda concerning the Equal Rights Amendment), and, most recently, lesbians and gay men.
There are two ways to approach the passage of Proposition 8. One is to catalogue the occasions on which the voters of California have passed blatantly discriminatory initiatives. Thomas Cronin observes that California presents one of the rare cases when the voters indicated that they were less concerned with minority rights than their elected representatives. In 1963, the legislature passed, and Governor Pat Brown signed, the Rumford Act, a fair housing law that prohibited racial discrimination by realtors and property owners. California real estate interests gathered enough signatures to put Proposition 14, which would repeal the Rumford Act and further prevent any locality within the state from passing fair housing legislation, on the November 1964 ballot. In that election, the voters of California supported the real estate interests (and voted FOR discrimination) by a margin that approached two-to-one. Three years later, in Reitman v. Mulkey (1967), the Supreme Court of the United States struck down Proposition 14 because it authorized and encouraged illegal racial discrimination.
Several years later, in a similar action, African-Americans and Mexican-Americans challenged a provision in the California constitution which demanded prior approval by way of local referendum before the state could develop a federally-funded low-income housing project. Their case also went to the Supreme Court as James v. Valtierra (1971). In upholding the California state constitution, Justice Hugo Black wrote, “provisions for referendums demonstrate devotion to democracy, not to bias, discrimination or prejudice.”
The other is to look at how a variety of municipalities – states and cities – have looked at various initiatives and referenda concerning lesbian and gay rights issues. The first of these came in the wake of the American Psychiatric Association deletion of homosexuality from its list of psychiatric disorders in 1973. This paved the way for municipalities to add “sexual orientation” to the list of characteristics against which discrimination was prohibited, and this created a backlash. In her review of direct democracy as it is applied to gay men and lesbians, Barbara Gamble observes that 79% of the 43 anti-gay rights initiatives that reached the ballot between 1977 and 1993 were approved by voters; the bulk of these, in places like Miami-Dade County, St. Paul, Minnesota, Wichita, Kansas, Eugene, Oregon and San Jose/Santa Clara County repealed legislation passed by local elected officials that protected gay rights. Only twice between 1977 and 1980 were such measures rejected by the voting public. In 1978, California voters rejected the “Briggs Initiative,” which would have banned gay men and lesbians from teaching in the public schools, by a 58-42 margin, and voters in Seattle refused to remove the phrase "sexual orientation" from city employment and housing ordinances by a 63-27 margin.
Between 1989 and 1993, voters in St. Paul, Seattle, and Portland, Maine refused to repeal local gay rights ordinances (see? NOM is wrong already), while voters in Tampa, Lewiston, Maine and Cincinnati repealed similar ordinances. Cincinnati’s Measure 3 also prohibited the city council from passing any new legislation that supported gay rights, and this has been upheld by the Sixth Circuit of the United States Court of Appeals.
One of the measures in which voters amended the state constitution to bar the state or any government within the state from passing laws or regulations that protected gay rights made it to the Supreme Court. When the citizens of Colorado passed Measure 2, the campaign for which framed the civil rights of gay men and lesbians as “special rights” and suggested that defeat of the measure might lead to affirmative action programs, the state courts stayed the measure in order to assess its constitutionality.
In Romer v. Evans (1996), Colorado argued that, since gays and lesbians were not a “suspect class,” the measure should stand; nevertheless, the Colorado Supreme Court upheld the lower courts stay 6-1, arguing that the measure violated the fundamental right of gays and lesbians to pursue their political interests in state and local legislatures. The United States Supreme Court upheld the Colorado Supreme Court by a 6-3 vote on the grounds that Colorado had not been able to show any rational basis for enacting the measure.
The Romer decision followed two events that contributed to another round of backlash. The Clinton administration had attempted to reverse rules that kept out gay men and lesbians from joining the military, and the outcry of outrage resulted in the “don’t-ask-don’t-tell-don’t-pursue” policy, now mercifully dead as an issue. More ominously, the Hawai’i Supreme Court, in May 1993, held that denying marriage licenses to same-sex couples would be unconstitutional unless the state could show a compelling reason to do so. The Hawai’i legislature promptly held hearings and in 1994 banned same-sex marriage in the state. This was confirmed by a referendum which amended the state constitution to “reserve marriage to opposite-sex couples,” approved by 69% of Hawaiian voters in 1998.
The Hawai'i referendum came amid a flurry of activity by several states to forbid same-sex marriage. The first state to do so was Utah (surprise!), by an act of legislation, and the federal government followed by passing the “Defense of Marriage Act” with serious bipartisan margins (342-67 in the House of Representatives, 85-14 in the Senate), which President Clinton signed 21 September 1996. Between 1996 and 2003, 40 states either passed statutes or amended their constitutions to forbid same-sex marriage; California was among these, passing the Knight Initiative, which stated “Only marriage between a man and a woman is valid or recognized in California,” by a 61-39% margin, in 2000.
All this activity took place under the penumbra of Bowers v. Hardwick (1986), a case in which the United States Supreme Court found (by a 5-4 margin) that the right to privacy did not encompass homosexual acts between adults. In 2003, the Supreme Court revisited this question, and, in Lawrence v. Texas, held that criminalizing same-sex acts “demeans the lives of homosexual persons,” thus repealing all state laws that made same-sex acts criminal. While the majority opinion made no explicit claims that changed the status of gay men and lesbians beyond decriminalization, a dissent by Justice Antonin Scalia warned, “What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”
Since then, 25 states have amended their constitutions, 13 by referendum, to prohibit same-sex marriage and another 11 have passed referenda in response to a ruling by the Massachusetts Supreme Court that gays had equal marriage rights in 2003 which led to the state marrying same-sex couples after May 17, 2004. And then, in November 2008, the voters of California overturned a court decision that dictated marriage equality,
and the voters of Maine refused to let an act of the legislature signed by the governor that instituted marriage equality be enacted.
With regard to the initiative and the referendum, William Howard Taft also commented,
it is proposed to dispense with all the limitations on legislation contained in the Constitution, and it is proposed to leave to the initiative and the referendum, without regard to the character of the law, or what it affects, and without limitation to individual rights, the absolute power to legislate according to the will of the people. This was the principle that prevailed in the pure democracies of ancient times, and we all know with what disastrous results.Taft would be relieved to know that state courts and state legislatures are doing what they can to expand the rights of minority groups, even though he would be dismayed by the track record of the American voter on these matters.
Four years have passed since November 2008, and we have four referenda: one which reinstates marriage equality in Maine, two which confirm legislative decisions affirming marriage equality, both signed by the states' governors, in Maryland and Washington State, and one which will eliminate the possibility of marriage equality in Minnesota. Let's show NOM and the rest of the homophobes that the script has flipped.
And, Kossacks, here are your marching orders (with a BIG h/t to JekyllnHyde)!