The people of Maine chose to vote against gay marriage yesterday, becoming, apparently, the 31st state in a row to refuse to expand LGBT frights by way of popular vote. This is a strong blow to the gay marriage movement in the US and abroad, as while the judiciary and the legislature in several states have been willing to acknowledge gay marriages (there is nothing stopping a gay couple ratifying a marriage contract, they merely are not acknowledged by the state), every time the people have been asked in a referendum, the most authoritative decision-making tool in any democratic state, they have refused to recognise homosexual marriages as being equal to their own.
This creates a crisis of legitimacy in states which do legalise same-sex marriage by way of the courts or the legislature, as there is always the strong possibility that if those same issues were put to a vote of the people, the response would be the polar-opposite. For instance, in Massachusetts, there is currently a campaign underway to have a referendum on the states’ same-sex marriage recognition. Although gay activists claim that any initiative to reverse these laws would fail, they still strongly oppose the holding of a referendum on the issue, and have done their best to block any moves to hold one, as they fear that even in the most liberal state in the US, homosexual marriage might not be upheld and affirmed by a popular vote.
This gives rise to the common argument that “civil rights should not be down to the popular vote”, and there is some truth to this, leaving aside the unfortunate parallels that the statement draws between the black search for civil rights and the search for recognition of same-sex marriage. However, the problem with this argument is that in any democracy the people are sovereign; the authority of the state flows from the will of the people. The state owes its existence to the people and their acceptance of it.
No body in the state can overrule the opinion of the people, excepting another vote of the people – this is the very test of a democracy. We have seen in the Nuremberg trials that there is a limit to this principle; there is a natural law which overrules the laws of man and makes certain acts illegal regardless of any constitution, legislature or court. To question this is to question the Nuremberg convictions, and the subsequent punishment of those who engaged in domestically legal acts. However, no honest man can say with a straight face that the right to gay marriage, assuming it exists, meets this test. No aspect of any assumed right to gay marriage comes close to justifying ignoring the will of the people, and any attempt to legalise same-sex marriage in Maine, by any other method than another referendum, would show a gross contempt for the informed will of the people.
This does not, as some opponents of gay marriage have tried to claim, mean that there can never be another referendum on gay marriage in Maine. Indeed, there hopefully will be another referendum soon, in which, after having reflected on the consequences of their choice, the citizens of Maine can choose to uphold their previous decision or change their minds. Notwithstanding that, once there has been another referendum, if the result is once again a no to same-sex marriage, that should be it for a period of time, so long as the referendum was conducted in a legal manner, and there is no pressing reason why the populace would have changed their decision (“they are wrong” is not an acceptable reason). It is not right to continually ask a people the same question over and over, because they keep giving the ‘wrong’ answer. There is no problem with rerunning an issue again after a period of time and social change (the divorce referendums in Ireland) or if there are pressing reasons why the first decision was flawed, for example if people were lied to as to the effects of the amendment, or if the concerns of the people have been addressed (the Lisbon/Nice referendums in Ireland).
It is often argued that while the people may be sovereign, those who legislate are not elected to represent the opinions of their electorate specifically on any one issue, but to promote a broadly similar platform on which they sought election, and to legislate in the best interests of the State, regardless of the current opinions of the people. They argue that a modern democracy is too complex and varied to be governed by the will of the people, and that representatives are elected to govern as best they can, and then must answer to the people after their term in office. This is a tempting point of view, and one that I broadly agree with. It is an impossibility to ask that legislators remain in lock-step with those who elected them, as the variety of opinion in even the smallest portion of any society is simply staggering. Furthermore the complexity of a modern democracy means that the average person, not having the many hours necessary to come to grips with the infinitesimal details of many of the critical issues involved in running a country, could not, if called upon, give a coherant opinion on many of the most pressing matters of state. The referendum on the Lisbon Treaty, and the shoddy public debate surrounding it is a harsh illustration of this.
All of the above is true, but if taken to it’s logical conclusion, means that there is no point in having any democracy, and a dictatorship is the answer, as an elite of legislators could do the best job of running a country, without reference to the will of the people. I do not claim that supporters of gay marriage desire this, I am just pointing out that if arguments relying on the unfit nature of people to assist in their own governance are taken to their extreme, an absurdity is reached. The answer which most states seem to have arrived at, albeit not explicitly, is that the broad moral issues are decided on the opinion of the electorate, and the more intricate minutia of the daily running of a country are left to the legislature. In Ireland, this can be seen by the fact that items such as the budget, criminal laws, and taxation measures are never put to the vote, but in recent decades votes have been held on subjects such as divorce, abortion and citizenship. If a modern, democratic and free state was to be imagined as a ship, the legislature and the judiciary would be the crew, hauling on the sails, keeping the bilges clean, keeping her in good repair, while the people would be have their hands on the steering wheel, determining the ship’s direction and focus. The modern republic is a complex apparatus run and maintained by elected representatives, with the broad will of the people, the principles and policies which they wish the state to uphold, used as the guiding light. It is precisely the role of the people to vote and determine the moral issues in which the state involves itself, regardless of how the author, as a Liberal, may view their choice. The recognition of same-sex marriage, and the extention of tax breaks, welfare benefits, pension benefits to those unions, is not a passive, permissive action in which the state declines to get involved, but is an active apportioning of tax money and governmental sanction, which means that the opinions of the people are relevant, and if expressed in a referendum, sacrosanct.
On a slightly separate note, I wish to address the issue of same-sex marriage in schools. It was stridently asserted in both the California and Maine campaigns that same-sex marriage would be taught in schools, which was denied with equal vigour by those in favour of same-sex marriage. It seems odd that considering the Supreme Court in Massachusetts chose in Parker v. Hurley to deny parents the right to not have their children taught that same-sex marriage was acceptable, the proponents of gay marriage would try and claim that the introduction of gay marriage would have no effect on teaching in schools. It seems laughable to suggest that once gay marriage is introduced, and more and more children are being raised in these unions, that there will not be a push for recognition of these parental units in classrooms. Indeed, it would be remiss of the teachers involved to mention only one kind of parental unit, in the full knowledge that children from a different type of unit were present. It is fundamentally dishonest to try and separate the two issues, as the recognition of same-sex marriage will inevitable lead to a campaign to include positive mention of these unions in the school curriculum, which the legally recognised status of SSM will give great weight to. In the next referendum, it would be far more honest if supporters of gay marriage admitted that they would hope to see acknowledgement of their relationships in the public school system (as they will be entitled to if SSM is legalised), and then continue on to explain why this is not something to be feared, and why this will be in effect a small change.
It is futile to ask people to believe that SSM will have no effect on teaching in schools, when voters can see the effects it has had in other states.