Saturday, November 15, 2008

About Proposition 8

Whether you live in California or not, you undoubtedly are aware of Proposition 8, that odd piece of democracy in action that sought to overturn California's Supreme Court's condoning gay marriage. Thanks to a campaign of fear, the proposition was passed, and after the glow of five months when same-sex couples enjoyed the benefit of marriage, the door has once again been shut firmly.

There are many difficulties with this example of "the people speak," but there's one issue that I don't think has been raised.

While I would never take away the people's right to lead its leaders, to introduce legislation (read: initiatives) to push the state legislature in directions they're not ready to go, there's a fundamental problem with the initiative process. It allows pretty much any initiative that gets a given number of signatures on a petition to be put before the voters. And sometimes, the voters are invited to march into an area where they have no business going.

I've been reading Doris Kearns Goodwin's excellent Team of Rivals, her monumental examination of the Lincoln presidency and how Lincoln turned his rivals on the road to the presidency into allies by inviting them to join his government. The time is a century and a half ago. The feelings about blacks were complicated back then. The South, of course, demanded that slavery not only be allowed to continue but to be spread to the new territories about to become states. In the North, abolitionists were agitating for outlawing slavery everywhere. And in between, there were those who wanted to leave slavery alone in the South, where they believed it would die an inevitable death, while prohibiting slavery in new states. What I did not know was that the issue was only freedom for slaves. There was nothing in any piece of legislation about voting, access to juries, or even the freedom of living where they wished. Black laws (read: Jim Crow laws) were still on the books and no one (even Lincoln) foresaw removing those laws. In the spirit of the times, the only issue was slavery versus simple freedom.

So I'm thinking: if freedom for slaves had been put to a vote by the people of the United States - even only in a Northern state, say, Illinois - the issue would have died a quick death. When the rights of a minority, indeed a minority that is suspect at least, despised at worst, are at the mercy of the electorate, the results of the election are sadly a foregone conclusion unless the winds of change have already begun to blow. And for the gay population of our country, like the black population of 19th century America, unfortunately, the winds of change have not yet become much more than a breeze.

Some things should not be put to a vote, and primary among them, the rights of others. Keith Olberman reminds us that the right of blacks and whites to marry was denied as recently as 1967. Had the people been asked to vote (since only whites had the freedom of the ballot box, even though suffrage was supposedly universal), I am sure that the status quo would have stood. Had the people been asked about whether separate schools were really equal, they would have responded with a resounding yes - but we didn't give the people a chance to vote. The Supreme Court took care of that issue, to its great credit. Imagine if a national initiative had been sparked after Brown vs. The Board of Education, and the decision had been overturned. Imagine.

And yet, in California today, the electorate claims the right of overturning judiciary rulings because, after all "the people had spoken" during a previous election. The problem with democracy, it seems, is that it relies on the voice of the people, and the people are often too easily led by fear and ignorance.

Isn't it time we thought twice about allowing any issue to be placed on a ballot? Isn't it time we placed restrictions on initiatives that seek to take rights away from others? Or do we have to wait until an electorate led by fear takes away rights from people like us - whatever "us" looks like?

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