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Who should decide gay marriage – voters or lawmakers?

May 16, 2012 By: Wendy Phillips Category: Current Events, Headlines, Law, Politics

CBSNews.com

Last week President Obama made history when he announced his support for gay marriage. And although the announcement gave the gay-rights movement new momentum, it has no real value to states which are struggling to deal with the gay marriage issue because it does nothing to change the Defense of Marriage Act, which is the federal law that defines marriage as the legal union of one man and one woman.
But the President’s announcement opened up discussion on the topic. And although the internet and airwaves are saturated with those who are discussing the more hotly contested issues such as whether denying same-sex marriage is a violation of civil and equal protection rights and whether the announcement will impact the upcoming Presidential elections, most are ignoring probably the single most important factor which will determine which states will legalize same-sex marriage and which states won’t. That single factor is the process by which a state is allowed to amend its constitution and enact new laws.
In spite of polls which show that a majority of New York voters agree that marriage should only be between a man and a woman, New York was able to legalize gay marriage last year through legislation which was voted on by lawmakers. However, when the same-sex marriage issue was put before the people of the state of North Carolina by statewide ballot on May 8, 2012, North Carolinians voted 61%-39% to approve a constitutional amendment banning same-sex marriage as well as all other types of same-sex unions.
A review of the marriage equality struggle shows that no state has legalized gay marriage when the vote was put before the people. In 31 states, marriage equality was put on the ballot for a vote by the people, and in all 31 instances, the people voted against it. However, in the 6 states which have legalized same sex marriage — New York, Connecticut, Iowa, Massachusetts, New Hampshire and Vermont — marriage equality was accomplished by legislative action and judicial decision – not by the vote of the people.
Therefore, it appears that a state is more likely to be successful in its attempt to legalize same-sex marriage if the issue is kept out of public polling places, and transferred to the lawmakers instead. If this is true, then why is it that some states put the question of legalizing gay marriage to the people while others leave the issue to lawmakers? The answer to this question depends on the process the state has in place for amending its constitution and enacting laws.
The two most common processes which are used in the US to allow voters to directly vote on legislation are initiatives and referendums. An initiative enables citizens to draft laws and constitutional amendments and place them on the ballot for a popular vote. Whereas a referendum provides for a popular vote on laws passed by the legislature. Initiative and referendum, also known as “ballot measures,” “propositions,” or simply “questions” are forms of direct democracy.
States which allow initiatives and referendums can look forward to a hard-fought and contentious battle from voters who oppose sex marriage. But in states which do not allow the people to directly petition to put an issue on a ballot, the fight to legalize gay marriage appears to be less contentious.
In New York, for example, the vote to legalize gay marriage was not put to the people because unlike other states like California, New York does not have an initiative process, and only a limited referendum structure. So in order for a constitutional amendment banning gay marriage to get on a ballot, a simple majority in both the state House and Senate would be needed to vote to put the issue before 20 million New Yorkers.
However, in Washington State, although lawmakers voted to approve gay marriage a few months ago, opponents have promised to fight gay marriage with a referendum which would allow voters to overturn the legislative approval. Therefore, if opponents are able to gather the approximate 120,000 signatures needed by June 6, 2012, they will be allowed to take their fight to the ballot box, thereby putting gay marriage on hold pending the outcome of a November election.
And in Maine, although a bill to allow same-sex marriage was signed into law on May 6, 2009, opponents launched a campaign to repeal it through voter referendum. They got the veto question on the ballot and on November 3, 2009, it passed by a vote of 53% to 47%, and the law was repealed.
In summary, a state may attempt to legalize gay marriage either by law or by amending its constitution. But in either case, success may very well depend on the forms of direct democracy available to the people of that state. The Initiative and Referendum Institute claims that 24 states have the initiative process, and 24 states permit referendums. To see what forms of direct democracy are available in your state, click here http://iandrinstitute.org/.

11 Comments to “Who should decide gay marriage – voters or lawmakers?”


  1. Reid M. says:

    This is very interesting it shows at least that the polls that these groups have conducted is at least questionable, who are these people that support gay marriage. This is an agenda, propagated by the media and their Hollywood cohorts. More people need to see these stats . . . i will spread the word.

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  2. Unbelievable. What rights of yours could I vote on? Your right to marriage, perhaps? And the only agenda for us is EQUALITY!

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  3. Chutney says:

    I would think that this would be a settled issue in this country after the events of the 1960’s. If the civil rights of Black Americans had been put to a vote in those days, there would be very few freedoms available to those that are currently working very hard to deny my rights to me. I find it sickening that people that once benefited from the legislation of rights would now be shown to be hypocrites of the worst sort while they work to deny freedom from the people that once marched at their side in the name of freedom. By denying the same right to legislated civil rights to the gay community, the black community is showing just how unworthy of love and respect some of them truly are.

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  4. Patricia says:

    Very informative. A straightforward and interesting lesson on voting on legislation. Thank you.

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  5. Excuse me, but I don’t see how homosexual individuals akin themselves to the plight of Black Americans. Being of Africian descent is an immutable charateristic. Some, not all, but some people choose to be gay whenever the shoe fits. We as a class of people were placed in slavery to generate an exorbitant amount of capital for. basically white americans, some of whom have gay descendants, who fought against those very civil rights you now claim should protect you. Blacks have been traditionally discriminated against based on nothing more than skin color. If you are a black or other minority gay, then you are protected by those same civil rights of which you attempt to claim you are denied.

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  6. Good post Eve. They want SPECIAL RIGHTS based on behavior not on genetics. If this was really about EQUALITY then where does it stop? Why should the polygamist who pays their taxes and loves many women (or vice versa) in a committed relationship be exempt from equalitY? Why should a sister who loves a brother not have the same equality? The laws were put into place by governing officials to protect marriage because of the potential offspring’s well being. It is about the children, not the self serving wants of the adults.

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  7. Well, Eve, you may be surprised to know that Coretta Scott King thought that gay rights, and in particular gay marriage, is a civil rights issue. Gays have been and continue to be discriminated against simply because of their sexual orientation. And yes, sexual orientation is immutable, just like your skin color. No one chooses to be gay or straight — I’m sure you didn’t — and no one can change who they are attracted to.

    Interracial marriage was once prohibited in the US. it took a ruling by the Supreme Court to over turn the last of them. In that ruling, they declared that marriage is a fundamental right and one that cannot be denied. Surely you agree with that?

    And surely you agree that if interracial marriage was put to a vote in the 60s, it would be denied by most voters. But apparently, you are okay with that.

    You don’t like gays getting married? Then don’t marry one! It’s as simple as that. But you have no right to deny this fundamental right to any person in the US, whether they are gay or black or whatever.

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  8. Pepper Pete says:

    anarchy thats where it leads (history repeating itself). If you deem it is OK its OK. Welcome back to the 60’s.

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  9. derrick says:

    Wow its Hard to believe that any person with a moral compass would support gay marriage or the liberal agenda. How can anyone say”yep let’s allow abortion (killing of our own unborn children) but let’s never say or do anything to offend someone with a perverted sexual lifestyle, or a Muslim that could likely have a bomb in his underware willing to kill everyone in sight.” Its a slippery slope people. Next pedophiles, bestiality, and rape will be allowed and normal because its agnist their rights to stop them.WAKE UP, STAND UP, AND SAY NO.

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  10. thewebgal says:

    Chill down Derrick, you are excited and don’t know anything about what you speak of. We have said NOTHING about abortion in this discussion. Everybody knows marriage is the right of 2 consenting adults to be married. Animals and juveniles can not consent. Rape is abuse and is insulting to even be brought up in this context. Your slippery slope has nothing to do with this discussion. I was born in this part of the USA and so were my parents. This conversation is strictly about the right to marry. My spouse and I have been together for over 15 years. We are a monogamous female couple. We own our own house (bought in 2000), have 2 recent cars, both paid off in full, and support the local school systems that we do not get any benefit from. We do not go to clubs and dance all night – we are homebodies and grow tomatoes and herbs on the weekend – and we grilled steak over the Memorial day weekend, just like most of you probably did. I work for DoD, she is office admin in a local church – yes, they know about us. I want to be sure she gets my retirement benefits and property if I die and she feels the same way. I want the same basic benefits any married couple would want – to protect the one they love – nothing more, and nothing less. Domestic partner won’t do. I don’t demand to be married in a catholic church or in any church that doesn’t accept us. But there are churches that do and they would do just fine – or a justice of the peace. But I don’t think my neighbor has the right to refuse us getting married, anymore than the state of VA did in Loving vs. VA. Its just a basic marriage – no reason NOT to allow it.

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  11. Michelle says:

    Why is it that society needs to discriminate against a minority group within the society. There will ALWAYS be discrimintion! I have no hope for the human race to ever grow!

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