With all the recent brouhaha about Prop 8 in CA, and the other similar measures in '04, etc. I have come to the conclusion that civil rights issues should not be put to a popular vote.
I don’t live in CA, I live in OR. In '04, my state(along with many others that year) passed a constitutional amendment that prohibited gay marriage. This amendment came about in part, as a reaction to several Multnomah county commissioners deciding to issue gay marriage licenses. At the time, I didn’t like the way they seemingly sprung the issue without much if any public input, but I now realize that is the only way. States that have gay marriage have it because of court rulings.
Would the Civil Rights Act of 1968 have passed if put to a popular vote? Would we have integrated schools without Brown v. Board? I don’t think that in 1954 the majority of voters would have supported integrated schools, but now we think nothing of black and white students going to school together. Even afterwards, we had to force integration with the barrel of a gun. Look at the history of the Equal Rights Amendment.
If we made gay marriage legal today, in 50 years time, our children and grandchildren would think much the same way about two guys or two girls getting married the same way that we view integrated schools.
We can expect to get minorities their full and equal rights by using the tyranny of the majority. Part of me loves the way ballot measures, propositions, etc. let the people decide important issues of the day, but it has it’s limitations, especially in regards to civil rights issues. As long as we allow the will of the people to rule, minorities will never get their full and equal rights.
What I don’t know is how we can limit the peoples’ rights to vote for only certain types of issues. Under the current system, progress stalls, but I can’t think of any mechanism to change it. Certainly, the people will not vote to limit their own power and if the courts or legislature do it, the outcry would be huge and would have to be listend to.
Among the reasons we have Federal and State constitutions, are to limit what the government can do, and also limit the majority’s ability to take rights away from a minority.
Unfortunately, in the case of same-sex marriage, its opponents don’t see it as a civil rights issue. Especially (and inexcusably) the black community.
If you asked me what the most important social issue currently facing the US is, I’d say “gay rights” in a heartbeat. But if the only way to get gay rights is to give up democracy, you’re going to have to count me out. Having the People decide on the rights of a minority does, quite often, suck gigantic donkey balls. But it beats the hell out of having one Person decide on the rights of a minority, because the odds of that one person being someone I personally agree with are mighty fucking slim.
I mean, if you’re going to say, “This thing is something that’s beyond democracy. This is something we don’t get to vote on,” then you’re going to have to figure out who does get to make a call on that. How do you decide who makes that call? How do you make sure that he’s going to make the call you want, and not the call your worst enemy wants? How do you make sure the person who makes that call is not, in fact, your worst enemy?
Correct. Even if you pout minority rights in a Constitution, people have to ratify that Constitution.
The whole problem of using judges and so forth to impose gay rights is what got things like Prop 8 going. You can’t force this kind of major change down people’s throats.
I know it sucks. But persuasion works better than imposition.
How well did persuasion work at integrating schools? Or getting women the vote? Or defeating slavery?
I agree with the OP: civil rights - that is, the rights of citizens to be treated equally under the law - should **not **be up for the vote. The whole point of them is that they must be protected from the rabid majority OR the rabid minority. Especially when, as in this case, they don’t cost anybody anything at all.
And don’t give me that line of bs about how every gay man has the same “right” to marry a woman as every other man. The second you delineate a right by gender, you’re violating civil rights.
Women got the vote and slavery was ended by a Constitutional amendment-- ie, voting. Brown v Board of Education is an important milestone, but schools weren’t really integrated until about a decade later-- when the Civil Rights Act was passed by Congress.
So, how do we set up the whole thing to start with? How do we decide which civil rights are to be protected and which ones aren’t? I guess we could look to the Bible (or some other sacred text) to see what has been handed down to us from above. Otherwise, I can’t think of how to start the process without a vote or a dictator (or dictators).
You never hear about abortion clinics being bombed or vandalized in Europe. That’s because their abortion laws were arrived at by a slow political process of give and take in which everyone felt they’d had some significant input. Consequently, you never see pictures of demonstrators harassing women going to get abortions in Europe.
In the United States, the decision was arbitrarily made by the Supreme Court. Many millions of people felt they’d had no say in the matter, and some of them decided there was no need to obey the law in resisting the decision.
What do you think is going to happen if the courts, or anyone else, arbitrarily decide to institute same-sex marriage?
Then you start down a slipperly slope when everything that is against the law somehow violates someone’s “civil rights” and therefore it becomes something that isn’t a legitimate issue for the people or the legislature.
As previous posters have asked, who decides what is a basic right? Judges? You would rather California be ruled by 7 people instead of millions?
no, the majority of voters in America did support integrated schools. (they may not have like the colored people very much, but in 37 states, they did NOT pass laws to segregate them)
lots of people use Brown vs Board to compare gay rights with black civil rights, but the comparison is wrong. In 1954, the vast majority of all American schools in the vast majority of the states were not racially segregated by law. Only 12 southern states had Jim Crow laws on the books. So the US Supreme court was not creating any new social precedent when it ruled in Brown vs. Board that the minority 12 states must now do what the other 37 states were already doing.
The recent decisions by local courts (in Masssachusets, in California) have allowed gay marriage as a totally new right that never existed before in that state. This is nothing like the Brown vs Board decision, which was a nationwide decision requiring a few states to grant the same rights that already existed in all the other states.
It’s a subject that should be decided by democratic procedures, not judges.
And if the majority of the public opinion will not accept gay marriage, then we need to change public opinion through democratic processes, not by judicial proclamation.
Actually, no. The Supreme Court decided Roe v. Wade as they did because of tremendous public pressure from below. Organizations like NOW and NARAL (or what they were back in 1973) organized demonstrations and other activism to raise the profile of the issue among the public and demand abortion rights for women. One of the justices explicitly acknowledged that in his opinion, saying the Court would suffer a significant crisis of legitimacy if they didn’t decide in favor of legalizing abortion. It wasn’t arbitrary, and millions of people did feel they had a say in the matter.
To return to the larger point addressed in the OP - it’s a mistake to simply look at the outcome of the vote. You have to look at the campaign behind the proposition as well in order to properly lay blame. The “Yes on 8” campaign was well-funded and highly organized, whereas the “no” campaign was, if equally well-funded, very poorly organized. “Yes” ads explicitly focused on homosexuality and its “agenda”, while some of the most prominent “No” ads didn’t even mention the word ‘gay’. It was an uneven fight and, as in all uneven fights, the weaker side lost. Don’t blame the public for responding, blame the leaders of the “No on 8” for not responding well enough.
Civil rights issues should be put to the public vote, because it’s an excellent opportunity for mass education and debate. The leaders of the campaigns around the issue just need to be the type of people who can step up to the fight.
I’m pretty sure having government forsake it’s duty to protect the rights of its citizens to kowtow to a bunch of bigots ISN’T a good thing for America. Maybe for Shodan, but not for America.
Every branch of government has a role to play in deciding what are basic or civil rights. Just like pretty much everything the government does. Congress, the President, and yes, the judiciary, all have a role in the protection of the rights of citizens.
This discussion is proceeding quite well without attempting to make it personal. Note that several proponents of gay rights have spoken in favor of the democratic process over the judicial action. Back off.
[ /Modding ]
The OP asks about putting civil rights questions directly to the populace which shouldn’t be confused with having them decided by a popularly elected assembly. Under direct democracy each question is considered individually whereas in a legislature there can be horsetrading. Then the importance of each issue becomes a factor. Instead of half hearted naysayers voting down what a minority considers a vital issue there can be compromises where the minority on that question can trade for their votes on questions they don’t feel as strongly about.
While I’m sympathetic to the notion that our civil rights aren’t subject to majority ratification, the simple truth of the matter is that they are. If nobody recognizes my right to free speech or freedom of religion, what good does it do me? I may have that right, but it doesn’t do any good if I’m sitting in a jail cell.
What keeps me out of that jail cell is that the vast majority of people in this country agree with the notion of freedom of speech and freedom of religion. Sure, you might find temporary or local majorities in favor of certain restrictions on civil rights, but that’s rare.
What protects our civil rights is not the Constitution. The Soviet Union had a wonderful constitution that protected every sort of civil right, but their constitution was meaningless because it was ignored. Instead our civil rights are protected by our fellow citizens.
If the cops violate my fargin civil rights, I can go to the judge. If the judge violates my fargin civil rights I can go to the appeals court, and so on. But how did that judge and that appeals get in the position of protecting my civil rights? They were put there by my fellow citizens, who decided ahead of time to agree not to perform certain actions even if they really wanted to. But that agreement can be revoked if enough people start to disagree. The courts can decide I have a particular civil right granted by the constitution, but the people can simply have the constitution changed.
And this is what has happened in most of the gay marriage court cases. Even when the courts agreed that gay marriage is protected by the constitution, the citizenry simply amended their state constitutions. If the American people decide we want fascism, then fascism we will have. If we decide to write violations of civil rights into the US constitution, then no court or philosopher-king can prevent this. The only way to prevent it is to convince people that these civil rights violations are a bad idea. If you can’t persuade people that it’s a bad idea to make gay marriage illegal, then you’ve simply lost. It may indeed be a violation of your civil rights, but pointing out that your civil rights are being violated only works if it convinces people to change their mind.
The OP isn’t thinking about reality. Everything is a civil rights issue. Crossing the street when the light turns green instead of when you want is infringing on your rights. Not being able to have sex with 8 year olds is infringing your and their rights. Not being able to smoke in restaurants in infringing your rights.
So yes, we do need someone to vote on our rights, but no it shouldn’t be done democratically. Representatives are hired to both understand in more depth than we can be trusted to and to simply be smarter people than the average populace. Overall this tends to lead to a more cutting edge crowd of people than the average populace (regardless of whether it seems that way.)