411 Politics Round Table: Same Sex Marriage and the Referendum Process

Posted by J. Alexander Mitchell on 11.12.2009

"Insanity is doing the same thing again and again and expecting different results..."

EDIT: In the time between the creation of this article and the posting of this article, Washington State has passed by referendum the "Everything But Marriage Law" (Referendum 71) which greatly expands the rights of domestic partnerships. As noted in the article, it does not all for full-fledged gay marriage, though, on a cursory glance, there does not appear to be any differences in rights from a state perspective. Thanks to 411 Commenter John for noting the oversight! Also, apologies to Jake G., whose responses were eaten by my e-mail. His thoughts have been added.

Welcome back to the 411 Mania Politics Round Table! We've got a new topic for the week, with a streamlined set of questions based on your feedback. As always, we thrive on the thoughts and opinions of our readers so PLEASE, continue to let us know what you think of our answers and the questions themselves. We love to know what you feel, even if you disagree with us vehemently on cap and trade (yes, that is a subtle wink to a particular commenter that loves to bring up my thoughts on that issue).

Here's our controversy for today:

The state of Maine became the latest state to place the legalization of same sex marriage to a public referendum. It also became the latest state to outlaw same sex marriage as a result of a public referendum. Whereas it is not as much of a "hot button" issue as it has been in the past, a definite pattern has emerged: if the debate over same sex marriage becomes a function of a popular vote, the legalization of same sex marriages will lose. Why is this the case?

Joining us in today's panel are:

Our panelists include:

Enrique, who has last discussed whether or not prosecutors should have to worry about being sued when they falsify evidence

Robert Zimmer, who last discussed the role that President Obama should play in pushing a public option

Jason Douglas, who last discussed whether the promises of a "new" Washington DC were even a possibility

Jake G., who last discussed conservative attacks on Sesame Street

J. D. Dunn, who last discussed how the corruption of the Democratic party equals the corruption in the Republican party

J. Alexander Mitchell, your host.

Let's get it on!

(1) Why, in your opinion, has same sex marriage failed every time it has been presented in a public referendum?

Enrique: Same sex marriage fails because it's still a relatively permissible form of bigotry. Although polls have shown growing support for same sex marriage, same sex marriage doesn't yet enjoy overwhelming support, so the religious right has one last opportunity to throw its weight around in the form of anti-gay marriage laws and constitutional amendments. It's their final chance to make it really irritating for future generations to undo these awful, equal-protection-violating same sex marriage bans. But that's what we'll have to do eventually, once the current generation of homophobic Americans who reliably vote dies off and can no longer enshrine its religious intolerance in state law. As you may surmise, I have no patience whatsoever for ignorant shitballs who think their religion entitles them to treat others like second class citizens. And if their shameful prejudice weren't enough, social conservatives go the extra galling mile by repeatedly insisting their opposition to gay marriage isn't discrimination. Clearly, these conservatives have no idea what "discrimination" means. I don't even know where to begin when someone claims their stark obvious prejudice isn't actual prejudice. There's really no arguing with people like that, so we just have to wait for them to go to their reward so they can't influence our elections anymore.

Robert Zimmer: Largely because the judiciary is mostly ahead of the general public on this issue. As with black civil rights, court decisions forcing the issue of same-sex marriage are coming down the pipe faster than the public is comfortable with. In my opinion this is not a bad thing. National support for same-sex marriage tends to average out around 50%, and it has lost by approximately 48%-52% in the last two referenda, California's and Maine's. Had Prop 8 or Prop 1 been put to a vote 20 years ago, both measures would have passed by 70% or more. The unmistakable trend line is towards increased public support for same-sex marriage, led by people under 30. However, the country isn't quite there yet, led by religious conservatives and older voters who simply aren't comfortable with gay marriage. Other factors in the loss of same-sex marriage at the polls lately: the unusually dishonest, fear-mongering political campaigns run by organizations opposing same-sex marriage. These organizations ran identical ads in both California and Maine (merely changing the names of the states), falsely claiming that schools would have to teach gay marriage to children; falsely claiming that gay marriage would result in people being sued over their personal beliefs; and falsely claiming that churches would lose their tax status if they refused to change their policies to conform with same sex marriage. These ads were successful in boosting opposition to same-sex marriage by the few polling points necessary to win.

Also, it is important to note that same-sex marriage advocates have not mastered effective political combat. Supporters of same-sex marriage in California ran what is widely considered to have been an inept, weak campaign opposing Prop 8. Maine's version, Prop 1., also benefited from low turnout among younger voters, who support same-sex marriage at far higher percentages than older voters, who tend to turn out during mid-term elections. As long as anti-gay marriage forces are willing to pump money into races, run tough ads, and turn out an enthusiastic army of voters, they will be more effective than same-sex marriage supporters.

J. Alexander Mitchell: I recently told a friend that if we left the topic of slavery had been left to public referendum in the 1800's I would still be picking cotton right now. This is an exaggeration of course; I assume that advancements in technology would have long made that particular usage of slaves obsolete, so I would undoubtedly be someone's manservant. The point is that public opinion does not always translate into what is legal and/or right. For many, this is a particularly emotional issue, and perhaps one of faith. As a Christian, I believe that people have to make the choice not to sin, so the fact that homosexuality is a sin according to Christianity should not factor into an equation which is really centered around human rights. However, the key word in that sentence is "I", and unfortunately many of my spiritual brethren do not see things my way... much to the consternation of homosexuals in Maine. As long as this particular prejudice against homosexuals remains permissible (and, more importantly, easily marketed), we will have to wait for this particular morsel of equality.

J. D. Dunn: This one is pretty easily chalked up to fear of change. The status quo usually rules because people can imagine a number of different horrible outcomes when making decisions. It doesn't help when outside groups spend millions of dollars convincing people that, if same-sex couples are allowed to marry, we'll have to teach third-graders about anal sex or we'll have to allow a man to marry his dog. We know, demonstratively, that this isn't true, because in the few windows of opportunity where same-sex marriage was legalized, society didn't crumble.

Jake G: There are a lot of answers to this question. I'm not sure we can narrow it done to any simple view because everyone who votes for something may have a different agenda as to why they voted. Sometimes legislation is poorly presented on ballots. We've heard in the past that people have voted against something simply because they didn't know what it was. Of course, the most likely reason is that most of America still doesn't support gay marriage. Gays are only a fraction of the populous. A lot of people have conflicted views on being gay, much less marriage between gays. I think there is just too much working against gay marriage to work in their favor at the moment. It's still not as socially accepted as other things. Perhaps eventually it will overcome, but at the moment people still feel that being gay is almost a bad stigma and when folks get into the voting booths they tend to be their most basic, fearful and introverted. That works against gay marriage proposals. I'm not certain that putting everything to a vote is the best course of action. I imagine if all our laws had been created this way, lots of stuff we accept as normal wouldn't have passed.

Jason Douglas: There are some people I dub "closet bigots". In public, they are politically correct, refraining from offensive jokes and slurs. Then when they get home, away from coworkers and neighbors, they vent their intolerance. A referendum is an anonymous forum to render a controversial opinion without judgment. It's a lot like most internet message boards, where the worst society has to offer can troll without consequence. But referendums are tied to elections, and we know that seniors, a growing percentage of our population, vote in higher proportions than other demographics. We also know that on average, older people aren't as progressive as young adults. The outcomes aren't that big a surprise, and don't necessarily reflect the view of their respective states as a whole.

(2) Scott Fish, a spokesman for Stand for Marriage Maine, has stated that opposition to same sex marriage has come from both a spiritual standpoint and from the philosophy that the iniquities between traditional marriage and domestic partnership can be corrected through legislative means. Is he correct that a legislative path to balancing domestic partnerships and traditional marriage is a viable route?

Enrique: I suspect that Fish, like most social conservatives, wants to deny the use of the term "marriage" for same sex partnerships as a way to delegitimize them. A "domestic partnership" is obviously not as meaningful in the minds of social conservatives as a "marriage." In that sense, the easiest way to balance traditional marriage and domestic partnerships through legislative means would be to call them by the same name. Somehow, I doubt that's what Fish has is mind. I'm going to call bullshit on this "legislative path" argument – clearly, the only thing motivating Fish and gay marriage opponents is religion. Any other claim is simply not serious.

Robert Zimmer: "Spiritual objections" to same-sex marriage have no place in government because of that quaint foundational principle of separation of church and state. The responsibility of those in legislatures on this issue is a civic one, not a religious one: guaranteeing equal rights for everyone. If state legislatures can achieve equal rights for same-sex partners by calling their civil relationships "civil unions" or "domestic partnerships" or "tequila sunrise," thereby satisfying conservatives who demand total heterosexual ownership of the word "marriage," then fine. A semantic difference is too stupid and flimsy a foundation upon which to perpetuate inequality in civil rights, and extremists on both sides of this argument should take heed.

J. Alexander Mitchell: I believe he is correct, but it is doubtful that the implementation I would advocate would ever see the light of day of Congress. I think the problem isn't with the usage of the word "marriage" in a homosexual light; I think the government should not utilize the word "marriage" at all. The legal aspect of the "committed" relationship between two people should not be referred to as a "marriage"; all contracts of this type should be referred to as civil unions. If a church wants to grant a spiritual blessing to this legal union, the church itself may refer to it as a "marriage". However, that would be something the church can decide independently.

So, to summarize, I do believe there is a legislative path to equality. However, I can't see a Congressperson that wants to be re-elected putting that bill on the floor. For the answer to why, see question #1.

J. D. Dunn: I'm pretty sure Mr. Fish would also oppose "civil unions" if it came down to it, so it's a little disingenuous for him to oppose same-sex marriage on those grounds. Otherwise, there really is no difference between a civil union (recognized only by legal bodies) and traditional marriage other than the blessing of the church. Given that we are supposed to have separation of church and state, where the state can't tell the church who or what to recognize, that should be a no-brainer. This smacks more of a shell game, though, where Fish opposes same-sex marriage by offering a non-threatening alternative and then, when that alternative comes, he'll find other grounds to oppose that.

Jake G: I used to be against gay marriage. I just didn't feel it was right. It was some gut instinct because I had been taught that marriage was a bride and groom. Even though I have no issues with gays. Then I finally realized I just don't care. There is no institution of marriage to protect and there is no spiritual guidance that matters on this subject. There are a billion religions, some have no issues with gay marriage. Once you say that gay marriage is being stopped because of spiritual reasons you're essentially saying one religion is better than another, which opens up a whole other can of worms.

Jason Douglas: Establishing an alternate legal status for gay couples is not viable. If it happens, it will only be one more step toward the inevitable: gay Americans WILL gain full access to marriage. All activists are doing today is deciding which side of history they want to stand on.

Many have paralleled the fight to legalize same sex marriage with other, more traditional civil rights battles. Do you believe that this is the case; more specifically, that the right to "marry" any other consenting human adult is a basic civil right?

Enrique: Ideally, the government shouldn't be in the marriage business at all. Marriage should simply be a private contractual arrangement between consenting adults, whether they are a man and a woman, a woman and a woman, or two women and three men. The only role the government should have is providing a means of enforcing those contracts through civil litigation. But if the government is going to provide certain benefits for married persons, then those benefits must be available to everyone. Many states provide legal protections for married persons in areas like property ownership, inheritance, health care, hospital visitation, and child custody. In those cases, equal protection under the law should apply.


Short answer: no, marriage is not a basic civil right. It's a government-sponsored institution, and as such all citizens should have equal access to it.

Robert Zimmer: I firmly believe that the fight for equal rights for GLBT folks is simply the next frontier in the centuries-long struggle for equal rights in this country, a fight that has demanded for women and blacks an equality of rights and access to privileges connected with those rights. The fact that a majority of black Californians who voted for Obama also voted against same-sex marriage is a disgrace and a profound American irony. Every citizen has a fundamental right to life, liberty, and the pursuit of happiness. To compromise the latter right for homosexuals on primarily religious grounds is simply unconstitutional, and increasing numbers of courts across the country are reaching the same conclusion. In a fascinating, unlikely alliance, powerhouse constitutional attorneys Ted Olson and David Boies (who represented Bush and Gore, respectively, in the 2000 Supreme Court fight that handed Bush the presidency) filed a challenge in federal court in May 2009 against California's Prop. 8. Olson and Boies argue that measures like Prop. 8 are simply unconstitutional. Whether the federal courts (including the Supreme Court, where the case is likely to eventually land) will agree is anyone's guess, but Olson's reputation as a conservative icon made his support for same-sex marriage both surprising and indicative of how the country is evolving. When challenged by fellow conservatives as a traitor to the cause, Olson simply stated that his conservatives beliefs haven't changed; he is convinced that as a simple matter of justice, the government has no right to deprive people of the right to marry whomever they choose. I suspect America is headed for an eventual consensus on this issue that is similar to Olson's viewpoint.

J. Alexander Mitchell: I believe that, like the right to vote, the right to enter into a contractual relationship with a single, adult, consenting party is a basic civil right. This, by the way, illustrates the only difficulty I see with polygamy; you have to be able to pick one person to control whether or not, say, someone should have the plug pulled on them if they are on life support.

J. D. Dunn: Yes. An adult, who is able to give consent, should be able to marry any other one consenting adult. Government shouldn't be in the business of discriminating on the basis of gender or race. We just had a case where a man refused to marry interracial couples "because of the kids." Could one make an argument that children of interracial couples might suffer from problems based on their identity or teasing from other kids of both races? Of course. But that reason is not compelling enough to take away the rights of two people to get married, and the exact same thing can be said for gay marriage.

Jake G: Is Marriage a civil right? I don't know because a lot of what we consider rights are typically privileges. I do think gays are easily the most discriminated group of people in the country though, so on that front I can agree. I get weirded out if I see two dudes making out in a restaurant. I guess that makes me a bad person. Here's the thing though, I don't think that the gay dudes making out should be kicked out of the restaurant or made to set in a special section... I just have to learn to deal. Of course, I get creeped out when anyone makes out in a restaurant (What's up with that people?!) but I digress. If marriage is a civil right then gays being excluded from marriage is a civil rights violation. If someone can explain to me what hazard gays marrying each other causes, then I'm open to listening to their case, but just cause it makes you feel weird, just won't cut it.

Jason Douglas: For the purpose of discussion, I consider marriage a legal contract. It is long established that a legal adult has the right to enter into a contract. There is no legal basis to deny a select group of citizens the right to enter a certain type of contract. In fact to do so is unconstitutional. The second question at its core asks whether an equivalent to Plessy vs. Ferguson could put this issue to rest. It could not, and for the same reason as the original: separate but equal is inherently unequal.

Tell us what YOU think below!