State Discrimination in Marriage Licensing

Gov. Chris Gregoire. Photo courtesy of Greater Tacoma Community Foundation.

Washington State's legislature will institutionalize gay marriage this week, and I was lucky enough to hear Governor Christine Gregoire discuss the path to marriage equality on NPR.

The Washington Senate last night approved the bill 28 to 21, paving the way for passage through the state House and the governor's signature. Washington will become the seventh state to allow same-sex couples to enjoy the same treatment in marriage as heterosexual couples.

New Jersey Governor Chris Christie meanwhile, is ducking gay marriage legislation in his state. He has threatened to veto a marriage equality law, and urged the New Jersey legislators to put the question up to public referendum. Leaving aside from the possibilities that Christie truly is a bigot and wants to continue to discriminate against gay Americans, or is a political coward seeking to avoid a public that he perceives as deeply bigoted, is there a democratic reason to place marriage equality on the ballot?

Washington state also has a public referendum system, and Neil Conan put this exact question to Governor Gregoire:

CONAN: Why is this do you think more appropriate for representative government as opposed to a direct vote?

I have a few responses to this question before we get to Governor's Gregoire's. First, there was no push during the era of civil rights struggle to put the questions of ending legal segregation and discrimination up to a popular vote. It seems very strange that it would be "appropriate" to use a novel method of correcting legal discrimination instead of the traditional methods: legislate, litigate, and administer. The cooperation of federal courts, Congress, and the President overcame powerful, entrenched, and intense support for legal discrimination among local elites. That was a much more difficult task than that before marriage equality. The majority of Americans (and a vast super-majority of the future American electorate) support marriage equality. If traditional remedies were good enough to end legal discrimination against African Americans, why should they not be good enough to end legal discrimination against gay Americans? A combination of legislation, equal protection clause cases, and executive action is sufficient to enshrine marriage equality.

Ken Rudin elucidates the second reason why a ballot initiative is not an optimal way to legalize marriage equality in his question to Governor Gregoire:

We've seen opponents of same-sex marriage in the past, like, for example, Governor Chris Christie of New Jersey, saying let's take it out of the hands of the legislators, let's bring it before the voters. Every time same-sex marriage has appeared before the voters, it's been rejected. Why do you think that is if it's - given your change of heart, why don't the voters see - at least in the states we've seen so far, why don't the voters see it that way?

There is no urgency for most Americans to support marriage equality. Christine Gregoire, as a former Attorney General, and as as Governor, has wrestled with the questions of whether her state should continue to discriminate against the gay community. It's simply not a question on most voters' minds; the "personal journey" that has led Gregoire to push for marriage equality isn't one that the 'median voter' has to take. The status quo is fine for most voters. There is far more urgency in the political class for change because they are aware that their actions affect the same-sex couples who are barred from entering into a state-recognized marriage. Surely, relatives and friends of openly gay Americans feel their pain at their second-class treatment, and that portion of the electorate that has a close openly gay friend or family member is growing. There is no good reason for the legislature to wait for that portion to reach 50% before they act. The legislature is endowed with the responsibility and power to protect minority groups against legal discrimination. The public has no such responsibility; demanding that the power over a discriminated minority rest with an indifferent majority is sociopathic.

The third answer that Conan is looking for is that popular balloting initiatives are a poor way to do the state's business. Laws must be tuned to fit the purposes that they seek to attain. There is a reason that legislatures have deliberative norms and forms of passing laws. Simply stating a question and providing a legal text to be implemented does not create good law. Voters have no options to tweak, amend, or negotiate ballot initiatives. Legislators do. The ballot process does not tend to make good law.

The answer that Gregoire gives relies more on the idea that legislators should actively lead. That's why they were elected, and jettisoning that responsibility to the public via referendum is destructive:

You know, we have a lot of initiatives in Washington state, and it sometimes becomes very easy for legislators to say, well, I don't have to be responsible for my vote anymore. I'll just send the tough decisions onto a vote of the people. I don't think that's why we're elected. I think we're elected to represent our respective constituency, but also to make decisions and take the votes. And this one, I think, is one in which they should step up, absolutely make up their minds and take the votes.

This speaks to the political cowardice of saying "let the voters decide."

In support of the ballot initiative, however, we have Chris Christie. His claim is that the decision is too important to rest on the legislators' and governor's shoulders, and that the will of the voters must be consulted. "The purest form of the will of the people is an election," Christie claims. This may be true, but it doesn't speak well for democratic principles. The "will of the people" may be antithetical what is demanded by the Constitution. That was clearly the case in the civil rights movement era. "The will of the people" is also adequately expressed in the legislature for much more important decisions. As noted above, same-sex marriage is an intensely important issue for a relatively small population. Handling of the economy, tax codes, criminal codes, are all important to a much larger number of people. It seems that if Christie's principle is that we should have an election because that's what democratic society demands, we must decide almost every decision via ballot initiative. This position essentially circumscribes the power and purpose of the legislature, not something that New Jersey's or Washington's founders intended. I would like to hear Christie's rationale for believing that same-sex marriage is uniquely important to voters, but I have a sinking feeling that it really is simple bigotry or cowardice.

Governor Gregoire has decided that it's time for her state to stop actively discriminating against same-sex couples. Governor Christie puts his faith in moral relativism; if the "will of the voters" is to discriminate without basis, let them.

At the same time as these state decisions regarding marriage equality, we're waiting for the Supreme Court to strike down the Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages. There is a broad discussion of equality of gay and lesbian Americans, but and it's one of the few topics on which there is true normative divergence among the states. There is a generational piece to the acceptance of gay marriage. Polling shows a sharp gradient in support for gay rights with young Americans vastly more comfortable with orientation equality than their grandparents' generation. Social norms changed radically in the past 30 years, and young people are likely to know, respect, and admire openly gay friends, family members, and community members.

In a generation, the most polite gloss that history will put on Christie's actions is that he was willing to let bigots dictate New Jersey policy.