Week before last, the Boston Globe polled Massachusetts residents on the controversial question of same-sex marriage. After two weeks of voting, the poll looks as follows:



Now, there are many interesting things about this poll. For instance, over 82,000 people took the time to answer it - far more than any newspaper poll I've ever seen. Or for another instance, Republican Governor Romney's position is represented in blue, not the customary red. Or for a final instance, public opinion is quite close on this matter, even in this liberal state.

But I would say the most interesting attributes of this poll are the question: "Should voters decided on a same-sex marriage ban?" and the way the answer options given to respondents: "No: The majority should not vote on the minority's rights" or "Yes: Governor Romney is right to ask the State Judicial Court to override the Legislature's decision."

*

First, some background on government involvement in same-sex marriage, particularly focusing on what's happened here in Massachusetts. The first lawsuit seeking recognition of a same-sex marriage was filed in 1970. The issue received little public attention outside of the gay community for the next few decades, even as President Clinton, in 1996, signed the Defense of Marriage Act which defined marriage as a union between one man and one woman (a political statement having as much to do with his own difficulties with the "one woman" section of the Act as anything else). By 2006, though, about 20 countries had legislated recognition of some type of union between same-sex individuals, though virtually none of those unions are actually called "marriage." California, Connecticut, Hawaii, Maine, New Jersey, Vermont, and Washington, D.C. all recognize some sort of union between same-sex couples, but Massachusetts is the only state to make same-sex marriage legal.

In November of 2003, the Massachusetts State Supreme Judicial Court ruled that the state's ban on same-sex marriage was unconstitutional and further stated that civil unions did not go far enough, even if a civil union entailed all the rights of marriage. In 2004, the Massachusetts State Legislature passed a constitutional amendment over-turning the Court's decision and banning same-sex marriage (while allowing civil unions - their vote on this matter was heavily political and partly intended to defeat a competing measure that would not have allowed either civil unions or marriage). In order for the new amendment to go into affect, it would have to pass a second session of the Legislature one year later and a popular vote the year after that.

In 2005, the Legislature reconvened and rejected the proposed amendment by a vote of 157 to 39, thus preventing the amendment from going to a popular vote. However, later that year, VoteOnMarriage.org submitted a 170,000 signature petition that would require the amendment be put to a popular vote if at least 50 legislators voted to do so in a legislative session to be held in July 2006. The legislature has declined to convene this vote on several occasions. Next week, on December 20, the Supreme Judicial Court of Massachusetts will decide whether or not to force the Legislature to vote on the referendum at its next session in January.

*

And that brings us back to the aforementioned poll. I'll repeat it again here. "Should voters decided on a same-sex marriage ban?" Option 1, "No: The majority should not vote on the minority's rights." Or, Option 2, "Yes: Governor Romney is right to ask the State Judicial Court to override the Legislature's decision."

Subject matter aside for a minute, the language that asks and answers the question in this pole is extremely leading. And what's so fascinating about this poll, and the debate at large, is that by using this leading language it takes the notion of "activist judges" and turns it on its head. Instead of touching upon themes of traditional judicial activism, the poll implies a sort of "activist legislature."

Since the Supreme Court confirmation hearings last year, we have heard much about "activist judges." In general, what people mean by this term is judges who take the power out of the hands of the voters and into their own. These judges hand down decisions that are so broad ranging or require such partisan interpretation of language that they are effectively writing their own laws (traditionally the job of the elected representatives within the legislature) to advance their own particular agenda. The problems that occur when "activist judges" infiltrate a democratic system are clear: unelected individuals make the laws that govern the people.

The wording of the poll above implies that the legislature has somehow taken the power out of the hands of voters to advance its own agenda. Let's start with the question: "should voters decide?" Of course, voters should decide everything; that's what democracy is all about. But when we look down at our options, we are stuck between a rock and a hard place.

The wording in Option 1 ("No: the majority should not vote") makes that option not only seem fundamentally undemocratic, but it also implies that the majority of voters has not already voted on this issue. The latter is, in fact, not true: the majority voted to elect the current legislature which has declined to vote on the issue. That's how a representative democracy works: the voters vote to elect the people who will make the laws. As such, it is structurally impossible for the legislature to take the power out of the voting majority's hands. In that sense, an "activist legislature" is an oxymoron, yet this poll suggests the legislature has become activist in its refusal to vote on the same-sex marriage ban.

Now, let's move on to Option 2. In light of the way the poll question was asked, Option 2 implies that it is the Court that can put the power back into the hands of the voters. "Should the majority vote? Yes, the Court [should] override the Legislature." Peculiarly, it is the unelected judges who are in the position of upholding the popular democratic process by striking down the decision of the people's elected representatives.

*

A couple of years ago, Nick Kristoff of the New York Times cited an article stating that in 1958, 96% of Americans disapproved of marriage between blacks and whites. It took almost ten years from the time of that poll (and 14 years from the time it desegregated our schools) for the Supreme Court to declare laws prohibiting interracial marriage unconstitutional. In 1972, five years after the Supreme Court's ruling, 75% of Americans still disapproved of interracial marriage, and it took the state of Alabama until the year 2000 to repeal its own anti-miscegenation law. When it did, in a referendum, 40% of voters voted to keep the law on the books.

Change through the democratic process is messy. Sometimes the government - be it the legislative or the judicial branch - has to uphold laws that the majority of people don't like. In taking on the role of activists, our civil servants protect the rights of the minority and help society to function in a just manner.

« Previous Next »