My son’s school’s talent show got postponed so some of the teachers and staff could protest gay marriage at the Capitol. It’s up for a vote in Hawaii, and their signs are saying things like “Let the People Decide”.
I’ll try to set aside the morality or religiousness of it all, lest I poison the well. My question is this: Why is it up for a vote? It sounds like a civil right, and those whom follow the Hebrew deity Yahweh* will almost always outnumber gays and prevent it. Why are they, not the gays themselves, deciding on whether they should get married? Sure, we can hope most of the people are enlightened enough to get past that. However, it seems unfair to have others decide their fate, especially when the majority has so little to gain by preventing it.
It would be like putting up a poll in Alabama or Mississippi in the 1950s: “Should blacks be allowed to vote?” It’s not hard to guess how a majority of white folks would’ve voted.
Civil rights are ultimately decided by voting. Sometimes it would require a lot of voting to get rid of one, but civil rights are just laws, and any law can be changed by enough determined voting.
Yep, and the SCOTUS would have struck down a vote that disenfranchised blacks. Read the wikipedia page about different levels of scrutiny applied to different “classes”. Any law that treats the races differently is subject to the highest level of scrutiny-- which is why AA laws relating to race are often struck down. But “homosexuals” don’t get the same level of scrutiny that “blacks” or “whites” get. At least not yet. This may vary by state, but if they are granted even intermediate scrutiny, then anti-SSM laws would be doomed.
There are different ways to approach this question. (And I am not sure that the outcome is always the one you predict.)
One can argue that the issue is one of civil rights that should be enforced by courts, regardless of the “will of the people.” (Majority rule; minority rights.)
However, while some courts have ruled that way, based on the language in state constitutions, we have not had a definitive argument-plus-ruling in the Federal courts that would establish marriage as a right guaranteed to all peoples regardless of the sex of the partners. It really is new ground in Law.
One can also argue, however, that one of the reasons that racial civil rights took so long to become effective was that a lot of people felt that “the courts” were pushing something down the throats of the people with which “the people” never agreed.
From that perspective, getting Same Sex Marriage approved by elections cuts support from under people who will claim that the decision was “forced” on society. If society agreed to it at the ballot box, then people who wish to revert to the old way of doing things have a harder time arguing their case.
Beyond that, I am not sure that you are correct when you say
Several states have already supported SSM through elections. Beyond that, a number of Christian churches have already accepted SSM and among some of the churches where the leadership is strongly opposed to SSM, the people in the pews are not following their leaders. Among Catholics, for example, people accepting of SSM make up a slight but growing majority.
I think the overall USA ca. 1776 concept is: [ol][]Define a right in broad terms that most everyone can agree upon, like “free speech,” “right to assembly,” “right to worship,” etc.[]Next, in practice, apply those admirable and broad rights to specifics, and Let the courts decide how they apply.[/ol]
Considering that it took nearly 100 years after the end of the Civil War for Jim Crow to end (through federal intervention), I’m wondering at what point the (white) voters of the southern states would have felt generous enough to give blacks equal rights.
“According to five polls of Americans in 2012 and 2013, with the most recent conducted in March 2013, 76 percent of US Jews support legalizing same-sex marriage … The figure is remarkably high, particularly when compared to the number of Protestants (34%) and Catholics (53%) who support same-sex marriage.”
The Southern states have never been a majority of the country. While there are many people who have resisted civil rights for black people on claims of “judicial activism,” a majority of people actually embraced, (or, at least, accepted), civil rights by supporting their congresscritters’ votes for the 1964 Civil Rights Act and the 1965 Voters’ Rights Act.
Beyond that, I have staked no claim as to either approach being more expedient or more just. The question was “why” anyone would hold out for legislative enactment vs judicial action and I provided my views on that issue.
Because marriage is a public act. Gays don’t simply want to go thru a ceremony and live together; they want the rest of society to recognize their marriage legally. Hence the push to get Social Security benefits for same-sex partners, health insurance, next of kin recognition, etc.
Everything managed by the government has to be approved by a vote of one kind or another.
You have a referendum and ask the public for their Yes or No
You propose legislation and ask representatives for their Yes or No
You have a lawsuit and ask judges for their ruling
Which type of vote people want depends on where they think their personal view is going to get the best play.
The cynical reason why is that if judges and legislators do it, those who count themselves in the opposition to gay marriage will decry it harshly and exact a punishment on the officials who decided the law for them. While these homophobes are great in number and strength, their power is weakening by the month and by the year. However, most of the legislators who are in power do not want any backlash, so they call for a vote and can claim plausible deniability (or credit) for the result that occurs.
The good thing is, rights that are supported by the bulwark of voters in favor are rarely ever threatened again. Rights legislated by elected officials are seen as weaker, and thus more vulnerable to challenge.
In my view, all matters of civil rights should never be put to a vote. Fuck the voters, they have a long and sordid history of slow momentum building to an obvious conclusion that is often decades or centuries late. But politicians don’t like to tell voters they are idiots and thus the current system
Wait… what? Is this a public school? How is it that the school’s calendar is adjusted to accommodate in the teachers’ political activity?
Here in Texas, the legislature likes to hold important hearings regarding education issues when teachers simply cannot attend – like during weeks of mandatory testing.
In some circumstances, yes. But several States have had referendums in recent years approving gay marriage, so it works both ways.
Hawaii had already approved Civil Unions, and it appears that despite Hawaii being anti-SSM at one point (in line with most of the rest of the country at the point they rejected SSM), the majority there now supports SSM and this vote is a procedural matter. Back when they passed civil unions that granted all the same rights as marriage under State law they were basically being quite progressive. At the time, there was no Federal recognition of gay marriage period, so the Hawaii civil unions were essentially as good as it got in terms of legal recognition (it was just a naming difference.)
But the recent SCOTUS rulings have actually come down in such a way that a State like Hawaii, with legal civil unions that grant all the same state rights as marriage, aren’t recognized by the Federal government because they aren’t “marriages.” So Hawaii wants to now change this issue, since it has a material impact on people’s lives–before the SCOTUS rulings it was basically a naming argument in Hawaii but legally Hawaiians had already opted to grant same sex couples all the same legal rights under State law. The current Governor of Hawaii has been pushing for the vote to bring Hawaii into a state where its same sex unions are recognized under Federal law, which requires making them marriages instead of civil unions.
For the record, I’m a Christian, and I support marriage equality. I know a number of other Christians that support it as well. When the ban against Gay marriage came up in my state, I made a point of expressing my views and encouraging friends and family to go vote against it. It still passed, but this idea that all Christians/Jews/Muslims are against it is simply not true.
That all said, I would also strongly prefer that these sorts of things be put up to a vote. And if that’s not possible, enactment through legislation is still preferable to a court decision. The reason for that is precisely because the issues involved in rights, particularly one like marriage, are greater than just a simple law. If marriage equality is enacted via judicial activism, it will get them the ability to marry and certain rights, but large group of people will resent that as undemocratic and, frankly, I’d agree with that.
That’s why I’d rather see it be done by vote or at least legislation. If it’s legislation, there’s at least the politics and policy involved in the discussion, and the point that those who enacted it were elected by the people. If it goes to a ballot initiative and passes, it goes a step farther in showing that society as a whole supports marriage equality and gives a greater level of legimaticy to the marriage itself, in that society recognizes their union, not just the government. In my mind, until society recognizes gay marriages as legitimate on the same level, we don’t really have marriage equality.
That all said, if the choice is between nothing, and one of the lesser options, I’d tend to still choose one of the lesser ones, though the court would depend on how they justify their ruling. But this is at least as much a social and cultural change as it is a legal one, and it’s one that is clearly in the process of changing, and quickly too. If the opinions of society are changed as a whole, the laws will soon follow, but it could be quite painful if we go the other way around and focus only on the laws and just expect society to deal with it.
You can’t possibly be this ignorant of the role of the judiciary in this country because your claim is laughably simple minded? Here’s a clue: laws decided by the voters that are unconstitutional will be struck down by the courts. The Supreme Court has decided that anti-SSM laws are unconstitutional. We are done here. And, since I am sure that you are so very concerned, I am quite thrilled about that.
It was a very sad day for tiny minded, ignorant, bigoted, shit heads but a very good day for humanity in general when Prop 8 was struck down.