You often hear it said, "No one should be voting on the rights of others!" It's a noble sentiment, and it kinda worked out for African Americans -- 90 years after the fact. School segregation was overturned not by a vote of the people but by the Supreme Court in Brown, and ten years later bans on interracial marriage were overturned again not by the people but by the court in Loving. Then the Civil Rights Act was passed by Congress. The people never did vote on these fundamental rights.
And the fact of the matter is, as homophobic organizations delight in telling, LGBT rights have been voted on by the people of the United States at least thirty one times, and every time said people have done so said rights have gone down to defeat.
Partly as a result of this, and partly out of the strong belief that people should not be voting on the rights of others, LGBT organizations, many LGBTs and allies have taken a strong stand against putting rights on the ballot -- fighting the fight if left no other choice (i.e., California, Maine), but otherwise eschewing such votes.
It is time to have a debate about this.
![Photobucket](http://i552.photobucket.com/albums/jj321/jpmassar/2011-same-sex-marriage-trends-nate-silver.png)
Practical Consideration #1:
More Americans than not now support same-sex marriage. In states with Democratic majorities, where the battle is currently being fought, because Democrats are more supportive than Republicans, that means the skew towards marriage equality is almost certainly higher than the national polling averages.
Practical Consideration #2:
We are now witnessing NOM's and the Religious Right's latest intimidation tactics -- not against the people, but against their legislators. It is fast becoming impossible to get a marriage equality vote in a State legislature, because the opposition has perfected the technique of waiting until the time is ripe and then unleashing a blinding fury of letters, calls and emails to legislators on the fence, who then quail in fear of God's Maggie's Wrath.
You saw it at work in Maryland. You are (if you look carefully) seeing it at work in Rhode Island -- the openly gay leader of their House of Representatives can't even bring the question to a vote in the chamber he controls despite clear majority support by the population of Rhode Island!
And you will see it, as surely as the sun will rise tomorrow, in the next few weeks in New York State as Governor Cuomo attempts to find six votes in the Senate.
The most likely outcome of 2011's state battles for marriage equality will be one, two, three strikes you're out.
Practical Consideration #3:
To leave the fate of LGBT rights in the hands of nine Supreme Court Justices, four of whom are strongly suspected of an 'over my dead body' mentality when it comes to LGBT rights, is a hellava thing to rely on.
What do you think the odds are of the Supremes overturning DOMA, Section 3? If you say more than 50-50 I'd say you're fooling yourself.
And the odds of them declaring that marriage between same-sex individuals is a fundamental right? No more than 25% that I'm willing to wager on, and that's generous.
Practical Consideration #4:
By taking a direct vote of the people off the table as an option, opponents of marriage equality are given a powerful slogan -- "let the voters decide!" And since all voters, no matter what the issue, believe they are perfectly qualified to decide for themselves, this resonates with them.
Let's look at a few of the practical effects elsewhere in the world of not being able to let the voters decide:
Australia: 62% of respondents supported the recognition of same-sex marriage, yet the Prime Minister will not allow a vote to be held in Parliament, despite 78% support for allowing that vote.
United Kingdom: 61% agreed with the statement "Gay couples should have an equal right to get married, not just to have civil partnerships" while 33% disagreed. No vote has ever been taken in Parliament.
France: A July 2010 Crédoc poll found 61% of respondents in favour of same-sex marriage... A January 2011 TNS-Sofres poll found that 58% of respondents supported same-sex marriage. No vote has ever been taken in the national legislature.
Ireland: A new poll has found that 73 percent of people in Ireland are in favor of gay marriage, the highest number ever. No vote has yet been taken, although may happen in the next year given the recent turnover in government.
Legislatures worldwide have been reluctant to follow the will of the people, largely in fear of their own religious establishments. It is true that here in the United States most states cannot muster a voting majority (as opposed to an all-adult-sampled majority) to pass same-sex marriage yet, but there are exceptions:
-- In New Hampshire, the Republicans in the legislature were barely held back from voting away marriage equality this year. There have been calls for a referendum, which have been rejected in the hope that the Republicans will not be able to muster a veto override next year. But if marriage equality advocates were to have accepted a referendum proposal, the polls suggest a margin impossible for right wing homophobes to overcome: apolling average of about 60% - 35% in favor of retaining the status quo (marriage equality). (Note: Binding referenda aren't actually possible in New Hampshire; the right has presumably proposed such to appeal to the ignorant. A non-binding referendum would presumably be a possibility though.)
-- In Rhode Island, NOM and its allies have been loudly proclaiming "Let the people vote!". Yet if the people did vote, every poll has shown a wide majority in favor of marriage equality (50%-41%, 59%-31%, 60%-31%). If the legislature is too cowardly to vote, then perhaps the challenge should be accepted head on. Indeed, let the people vote!
-- In New York, polling shows consistent support for marriage equality (58%-36%, 56%-37%, 57%-38%). The legislature is not reflective of this sentiment, and unfortunately there is no mechanism for ballot initiatives (at least binding ones) in New York State.
-- In California, the polling is also favorable: 51%-40%, 51%-42%, 50%-45%. The polling will likely be more favorable come November 2012, and there won't likely be a more favorable electoral demographic than the 2012 California electorate until 2016.
Yet Equality California and national LGBT organizations are still gnashing their teeth and debating whether 'the time is right' for a vote, or whether the endlessness of the Proposition 8 trial should be allowed to continue until someday Anthony Kennedy flips a coin to decide the fate of same-sex marriage in California and possibly the entire United States.
Perhaps it's time to let the people of California undo their mistake. Indeed, let the people vote!
Surely it would be an enormous effort. Money, time and effort will be needed in abundance. But the result -- the largest state in the Union once and for all putting to rest the myth that the people will not vote for marriage equality -- will have been worth it.
As acceptance of gay marriage becomes ever more prevalent in society, more and more states will able to pass a referendum legalizing same-sex marriage -- and more and more state legislators will be on the receiving end of the religious right's increasingly desperate yet too effective attacks.
Is the LGBT community willing to continue to renounce the use of this tool? A tool that, once unleashed and successfully employed -- so that the claim that the people will not vote for marriage equality is debunked -- could knock years off the fight?
Yes, people should not be voting on the rights of others. And if the 14th Amendment to the constitution said anything about sexual orientation, or if the Supreme Court were not composed mainly of dead white Republican males, it might be best to let the courts rule. But it doesn't, and it is.
What would Harvey Milk be advocating?
I think I know. Or do I? What do you think?