New Jersey And Maryland: The Bait And Switch Again

Andrew Sullivan —  Feb 18 2012 @ 12:56pm

As the GOP moves relentlessly off the far right cliff, the country is edging relentlessly toward accepting the humanity of gay couples and our marriages and relationships. But Chris Christie's veto – after New Jersey's legislature backed equality – and Maryland's upcoming referendum – after its legislature and governor passed a marriage equality law – form a sad last ditch.

To give some perspective, when we first started this push for marriage equality 23 years ago or so, we were told this was an interesting if obviously nuts idea. But the opposition was adamant about one thing: the courts had nothing whatever to do with ensuring minority rights, if that minority were gay. Going the court route was undemocratic. I remember being lectured on this by the Congressional Committee in the DOMA hearings in 1996.

And I saw their point at the time when public opinion was so hostile. I was always more leery of the court strategy than my friend and ally in the fledgling movement, Evan Wolfson, at the time. I didn't want a Roe-style over-reach. I thought that public education and state legislative debate was the right way forward. If in the end, the courts reacted to a shift in public opinion, and we won the constitutional and legal arguments, great. But I thought state legislatures were the main way to go.

So we did. And guess what? They moved the goalposts on us. When we actually began to win in state legislatures, such as California (twice!), or New Hampshire, or now Maryland and New Jersey and Washington State, that process became suddenly unacceptable – and undemocratic! – as well. Even on an issue many hold to be a core civil right, we were told the courts were irrelevant and now that the legislatures were irrelevant. This was particularly odd coming from conservatives who at one point in time were strong believers in restraints on majority tyranny. But this is what a legislative debate can do that no referendum can, and it's why the founders established a republic not a pure democracy:

I am not afraid of referendums in New Jersey or Maryland. Let's do all we can to win them. The polls are now increasingly on our side. But the way in which a tiny 2- 3 percent minority seeking basic civil equality has been forced now to be subject to state referendums, even after winning legislative victories, strikes me as revealing. It's basically an attack on representative government, a resort to the forms of decision-making which maximize the potential for anonymous bigotry and minimize the importance of representative government, a core achievement of Anglo-American democracy, that can help enhance reason of the accountable against the sometimes raw prejudice of the majority.

Christie is a man whose candor I admire in many ways. But this was an act of cowardice and unfairness and a misguided disregard for representative democracy. How many other duly enacted laws must now be sent to the referendum process for final judgment. Why have a legislature at all? And this from the party that claims to defend the Constitution.