A Vote Against Minorities

Last Tuesday, a sufficiently large minority of the Massachusetts Legislature voted to advance a 2008 ballot referendum that, if approved by the Commonwealth’s electorate, will impose a constitutional ban on same-sex marriage. In so doing, the Legislature compromised one of the most fundamental principles of our democracy: that the civil rights of minorities are meant to be protected by the government, not hijacked by popular passion. Gay and lesbian couples, like all people, have the right to marry—a right that should not be jeopardized by political maneuvering.

The very ability to amend the Massachusetts constitution through ballot referenda was originally intended to protect minorities, not to strip them of their civil rights. The provision was added to the state constitution in 1918, in the words of its supporters at the time, “for the advancement and betterment of the rank and file of the people of this Commonwealth, those who work in our mills and our factories.” But even then, referendum supporters foresaw a danger with their initiative: that enhanced majority rule would leave “no safety for the few, for the single man, for the minority.”

The Legislature’s vote has turned this fear into reality. With it, the petition to constitutionally ban gay marriage has fulfilled almost all the prerequisites necessary for advancement to the general ballot as a referendum in 2008: the collection of signatures equivalent to three percent of votes cast for governor during the previous statewide election and a 25 percent vote from the Legislature in each of two consecutive sessions. All that now remains for the question to be sent to the general ballot is a second one-quarter vote from the Legislature.

Supporters of the marriage ban argue that, since they acquired the required number of signatures for their petition, the Legislature has an obligation to rubber-stamp the amendment and send it to the people. They stood outside the Statehouse Tuesday, hearkening back to populist rhetoric with sanctimonious shouts of “Let the people vote!” But this is anything but an issue that should be decided by popular opinion. As the Massachusetts Supreme Judicial Court (SJC) rightly ruled in 2004, marriage is a civil right, not a matter of state policy. The proposed amendment is fundamentally an exercise in anti-gay prejudice, not popular empowerment, as its supporters constantly (and deceivingly) assert. To place the proposed constitutional ban of gay marriage on the ballot—essentially, to appeal basic civil rights to popular approval—would surely not be a triumph of democracy: it would be a failure of it.

Further, the pro-referendum movement’s claims to be the defenders of populist imperative are, given the results of recent elections, hollow. In two consecutive statewide elections, voters overwhelmingly supported pro-same-sex marriage candidates for seats in the Legislature. Even those who were originally staunch opponents of same-sex marriage have come to change their minds—notably, former State Senate Minority Leader Brian P. Lees, who said, “Gay marriage has begun, and life has not changed for the citizens of the Commonwealth, with the exception of those who can now marry.” A referendum at this juncture will do nothing to clarify public opinion—its only effect will be to generate a bitter, divisive political campaign at a time when the Commonwealth sorely needs political cooperation.

Given the deeply personal, transformative impact marriage can have on a couple—as well as the obvious value of hospital visitation rights, child custody, and retirement benefits—the stakes for gay and lesbian couples are clear. But we fail to see what the state, or for that matter those opposed to same-sex marriage, would gain in return by such a ban—besides moral edification. Since same-sex marriage was legalized following the SJC’s 2004 ruling, over 8,000 same-sex couples have married in the Commonwealth. We have yet to see any evidence that the sky is falling.

Referenda have several important functions, but the dissolution of civil rights is not one of them. We hope that the Legislature will, when it convenes to take its second vote on this initiative, make a different choice—a choice to protect the minorities of this Commonwealth, not those who seek to strip them of their rights.