| It is the same percentage of voters, which voted to remove marriage rights from gay citizens in California. This number, the groups fighting against full rights and the groups funding them were the only similarities. No on 1 did a great job in raising money. They were on the ground for a long time working to get the legislation passed and they kept right on going to try to prevent the forces of intolerance from reaffirming bigotry in Maine.
That they lost shows there are sever problems with trying to get full equality done through legislation and popular voting. Winston Churchill famously said "Democracy is the worst form of government, with the exception of every other kind" . He was right of course. There are problems letting the people decide all issues by popular voter. The biggest one being the inability of many of the electorate to actually make data based decisions instead of emotionally based ones.
It is for this reason that democracies have High Courts, and constitutions; so there are some principals, which are the bedrock of a democracy and are not open to popular opinion. These primary concepts are the protection that democracies can provide from the tyranny of the majority.
The history of anti-gay rights popular votes has shown the people of individual states cannot be trusted to live up the overarching ideal of full equality. This was true in the Jim Crow South and it is true today. The fear of the other, this kink in the human psyche, which allows us to dehumanize those who are not like us, has been the affective cause of these kinds of votes.
It is no surprise that the Radical Religious Right are the biggest stokers of this fear of the other. Many of the same people make the totally discredited and insane argument that the United States was founded to be a Christian Nation. With such a mistaken basic conflation of religion and governance it is no wonder they will use their religious bigotry to deny fellow citizens rights.
Just as the supporters of Jim Crow were wrong, the supporters of gay discrimination are wrong about what it means to be a citizen. And just as we as a nation had to resort to the Courts and the Congress to end Jim Crow, so will we have to follow that path to gain full rights for all citizens.
The 14th Amendment Section One reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is clear from a reading that the denial of marriage rights to gay citizens is unequal protection under the law. There are no two ways about it. If one citizen is granted the ability to enter into a particular type of contract (which is what civil marriage is) then all citizens must be allowed to do so, unless there is a specific and compelling reason to deny them this right.
For all of the Rights argument about the "traditional marriage" there has not been a single court, which has been willing to uphold the idea that there is a compelling reason for states to discriminate against gay citizens. Where the issue has gone to trial the courts have uniformly found the idea of more marriages, even between members of the same sex, do not threaten the institution of marriage. The concept of marriage being for procreation as a societal interest falls apart when people who are too old to procreate or can not conceive are still allowed to marry, as long as they are not the same sex. The only times where Courts have upheld gay marriage bans is when the constitution of the State has been amended.
This where we need to go next; to the United States Supreme Court. There is a fundamental principal of equal protection which even conservative judges would not be able to set aside. To do so would undermine the basic integrity of our system of laws. While there are many on the Left who worry that a conservative Court like the Roberts Court would rule against equal protection for gay citizens, the Dog is not one of them.
To rule that a single class of people could be discriminated against for merely membership in that class is completely contrary to settled law. This is not allowed for race, sexuality is no different. There is no compelling reason, aside from bigotry, to do so. In the law in the United States, we do not allow discrimination because someone finds your life icky. By suing at the Federal level we end this tyranny of the majority which happens in State votes and put the issue where it belongs.
There are those who argue marriage has always been a State issue and should be left there. This completely ignores the landmark Loving decision which ended marriage discrimination against interracial couples. Unless the Supreme Court is willing to put the basis of Loving up for grabs again, there is very little chance they will rule against full marriage rights for all citizens.
Which is the whole point of this post; why did we lose in Maine? Because the forces of intolerance made the issue about marriage, and not about the Fourteenth Amendment. They conflated religious marriage with the concept of civil marriage. One is a religious right, the other is a contract between two citizens and the State. This is the issue. The denial of rights to those who wish to enter into a contract can not be based on outside factors like religious approval or bigotry. This is where the law is clear. The fact the Civil Rights act did not include sexuality is an accident of history. It does not matter if (as the Right spuriously argues) sexuality is a choice, what matters is you are not allowed to tell citizens what contracts they can enter into willingly.
So, we lost yesterday. It is a sad thing that we are not yet enlightened enough as a whole that we would vote for full equality. However, the real place for change is not in the individual States, it is at the Federal level and in the Courts. We fought a good fight; it raised awareness and brought our points out one more time. That we lost is not a complete tragedy nor is the end of the battle. What it has done is make the issue clear that we must fight where we can win, in the Halls of Justice.
This is a battle where the Vox Populi is wrong. They are wrong in their understanding of the facts, they are wrong in their bigotry, they are wrong in their fear. However, we are not bound merely by the voice of the people; we are bound by our founding ideal that all people must be equal before the law if any are to truly be able to say they are free. It is this ideal, which will prevail and provide full rights to all citizens, regardless of their religion, their ethnicity or their sexuality. It is a fight we will win, just not today.
The floor is yours.
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