by Mat Wadsworth
The last couple weeks have been good for gay rights supporters. Washington became the seventh state to recognize legalized gay marriage, the NewJersey Senate passed a gay marriage bill, and the Ninth Circuit decided that discrimination solely for the sake of discrimination is unconstitutional. Across the country, less-ambitious, though no-less-essential lawsuits to overturn the Defense of Marriage Act (DOMA) are moving forward.
Gay rights seem to be advancing on all fronts at the moment.
There will no doubt be setbacks in the years and decades to come. Rick Santorum appears to be gaining momentum in the 2012 Republican primaries. Santorum’s vehemently anti-gay stance is notable enough that his last-name has famously been redefined by gay activists.
However, recent polling suggests that full-acceptance of gay rights is increasingly inevitable. Poll after poll shows public opinion shifting in favor of gay marriage, particularly among young Americans. Even young conservatives are increasingly voicing their opinion that they just don’t care about gay marriage.
It is increasingly likely that the debate about gay marriage is a “when” and “how” debate, not an “if” debate. There are various schools of thought on the best way to push forward for gay rights.
The ultimate goal must be federal Constitutional recognition that all Americans are entitled to marriage, regardless of their sexual orientation. However, that recognition may not occur in the near future. A more direct, though conservative approach has been to pursue rights on a state-by-state basis.
Several states believe the right answer is to put the issue up for a popular vote. Governor Chris Christie has promised to veto the gay marriage bill moving its way through the New Jersey legislature. Christie believes that changes this drastic should be decided by a popular vote, and he has called for a statewide referendum on the issue. A cynic would say that he sees the winds shifting and does not want to come out against gay marriage, but he also cannot damage his conservative credentials by signing the bill. Instead, he is doing his best to avoid giving a direct opinion on the issue.
This week, Washington became the 7th state to recognize gay marriage. Last week, during the floor debate on the bill, Washington representative Maureen Walsh (R) explained quite eloquently why it is fundamentally wrong-headed to put civil rights up for popular vote.
Walsh told a story about her daughter standing up to a bully who was picking on a weaker kid. “My daughter stood up for that kid. Even though it wasn’t the popular thing to do, she knew it was the right thing to do… She was speaking against the vocal majority on behalf of the rights of the minority.” She concluded that “it is incumbent on us as legislators in this state to do that. That is why we are here.”
It’s a simple story, but it precisely conveys the problem with leaving popular rights to the fickle whim of the voting populace. Anyone can put together a voting majority. Anyone can put together a stronger, bigger bully to strip the rights from a weaker, smaller minority on any given election day. Particularly in today’s mass-media, superPAC driven election cycles.
The idea that a majority of voters get to define the rights of a minority of people is repugnant to the concept that all men are created equal. It is repugnant to the concept that all men are endowed with certain unalienable rights. I do not care what majority or minority I happen to be in today; I reject the idea that my rights are up for vote.
There is a fundamental defect in the idea that the electorate gets to vote on my or anyone else’s rights. This country was founded on the idea that all men “are endowed by their Creator with certain unalienable rights.” If we buy into that high-minded ideal, then all people have rights simply because they have been born. People are not granted rights by the whims of the majority.
The vast majority of people would agree that marriage is one of those fundamental rights. The US Supreme Court has held that “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”[1] If it is correct that marriage is a fundamental right of man, then it must follow that all men are endowed with that right simply by being born. They are not granted that right by the whim of the electorate.
To Governor Christie, and anyone else who supports putting rights to a popular vote: it is incumbent on you as legislators to decide if marriage is a fundamental right of all men, or if it is not. If it is a fundamental right, then the voting populace has no business deciding who benefits from that right, no matter how they may decide.
Denying homosexuals the word “marriage” “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and Lesbians… and to officially reclassify their relationships as inferior to those of opposite-sex couples.”[2] That cannot be acceptable in a modern society, no matter what the majority of people happen to think today, tomorrow, or ten years from now.
Law Journal for Social Justice 
AMEN.
As a ‘young conservative’, I fully agree with the author that human rights are ‘inalienable’ and should not be a matter of popular vote. This is why many of our rights are enshrined in the Constitution and its amendments. I also agree that there is a natural right to marriage. However, the author unhelpfully skirts over the issue of what defines marriage, which is at the heart of this debate.
What is a defining element of marriage? This may sound controversial, but a defining element of marriage is the ability and permissibility of the couple to engage in sexual intercourse. Simply put, gay couples cannot engage in sexual intercourse. Philosophically and naturally speaking, the essential characteristic of sex is that it represents a complete gift (both physical and spiritual) of the couple to one another. It is a union, based on the physical and spiritual compatability of the man and woman. Most of all, the complete gift made in sexual intercourse is so great that it is procreative (i.e. able to bring about new life).
All of these defining elements are missing in gay sexual intercourse. Such intercourse is not procreative, is not based on a physical compatability of the couple, and because of this does not represent a complete gift of self. I know, I know – you’re probably thinking I’m trivializing marriage by reducing it to sex. But I think sex is important. Married couples are able to have sex, and this is the fundamental difference between a ‘loving and commited relationshp’ (as the 9th Circuit would define marriage) between friends and such a relationship between a married couple.
I’ll come out and say it: a gay union/marriage is inferior to a heterosexual marriage. Gay couples do not have a right to something that simply doesn’t apply to them. The 9th Circuit was right – the debate has essentially boiled down to naming rights. But names are important, as they signify our values and what we perceive to be reality. In reality, gay unions and heteroseuxal marriages are not the same. But as Lady Gaga, the prominent gay rights supporter, said in a recent music video: “I loathe reality.” Unfortunately, much of our society feels the same way.
Thanks, Mat, for this timely blog entry. When the American majority withholds fundamental rights of minorities, it has created some our country’s darkest eras.
Interestingly, the New York Times took up a corollary issue — how do we define family — this week in its “Room For Debate.” Here’s the link: http://www.nytimes.com/roomfordebate/2012/02/13/family-ties-without-tying-the-knot
John — ask most married Americans what defines their marriage. I wonder if they buy your definition that it is primarily about having “permission” to engage in sex and reproduce. Does this means it ends when the children have been successfully raised and leave the “roost?”
The definition of marriage and family has changed remarkably over the course of centuries, evolving in response to our culture, politics, economics, religion, etc. Marriage usually defines a set of obligations between two people, not limited to procreative sex.
Your “defining” element not only excludes gays and lesbians, but also infertile heterosexual couples as well. Of course, science and technology has also rendered your definition of marriage outdated as well. Lesbians can delightfully have all the spiritual and physical sex they want and manage to procreate as well, thanks to a turkey baster and sperm donor. And infertile couples, too, can bear children raise a family and do so without intercourse that leads to a pregnancy in the “traditional” way.
Lastly, thanks for “coming out” about how you really feel — that gay marriages are “inferior” to heterosexual marriages. It is not often that someone is so direct with his or her opinion.
I have been with my wife for more than six years. We have an incredibly deep emotional and spiritual connection that I am simply unable to describe in words. I find it deeply offensive to me, and generally degrading to any concept of “traditional” marriage, that you would tell me that the only element of that beautiful, incredible relationship that is worthy of memorialization in a marriage is the sex.
Here’s a great testimony from State Rep. Maureen Walsh, a Republican from Walla Walla, Wash., who explains her vote for gay marriage: http://youtu.be/CbmbdWK6338 .
I know this post is over 3 years old, but I wish to put in a slight quibble with your argument.
If a democratic, constitutional republic derives from the “consent of the governed”, how is that consent properly manifested on anti-discrimination rights regarding marriage or any other recognition if we’re not going to put the expansion of such rights to the consent by the governed? Or is it more reasonable to limit the threshold of validating consent on such rights to the elected legislature (which technically are elected by the “consent of the governed” to legislate most single bills on which the public can’t be reasonably called to vote every time)?
Because three years since your post was made, Ireland voted on, and overwhelmingly passed a constitutional amendment legalizing gender-neutral marriage (first time ever for an entire country), I wonder if referenda are a legitimate means for expansion of such rights when it is for the purpose of expanding the wording of a constitutional document by amendment.
The definition of marriage is subjective. As long as your personal definition of marriage does not infringe on the rights of another (marriage with a child infringes on the right of the child to make an informed decision).