Wednesday, November 11, 2009
Popular opinion lags behind justice
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Molly A. McClintock
McClintock, of Christiansburg, is on the board of directors of Equality Virginia.
Last week, Maine voters proved again why the granting of civil rights should not be determined by popular vote ("Gays vow to fight again for marriage," Nov. 5 news story). After the state's bi-cameral legislature passed the marriage equality bill earlier this year, it was signed by Gov. John Baldacci. He had formerly opposed gay marriage but "came to believe this is a question of fairness and of equal protection under the law."
Opponents of marriage equality sprung into action with a petition drive to get the new law tabled until Maine voters could weigh in. The problem with that, of course, is that we the people are not great arbiters of fairness. One of the underpinnings of our democracy is to protect the minority from the tyranny of the majority. The role of our elected legislators is to make law but not merely by doing the people's bidding. They are meant to serve the greater good. The role of our judiciary is to interpret laws based on our Constitution. If left to the people, justice will be and has been slow in coming.
How long would it take to extend rights to disadvantaged groups if we waited for popular opinion to shift? We have examples in our own history. Women were denied the right to vote until 1920, 144 years after this nation's founding. The women's suffrage movement went on for decades before the 19th Amendment was finally passed by Congress and 36 state legislatures. Virginia's legislature didn't pass the 19th Amendment until 1952. The Equal Rights Amendment, introduced in every Congress since 1923, has yet to pass.
Discrimination against people with disabilities was lawful largely until the Americans with Disabilities Act passed Congress in 1990. It prohibits discrimination in the workplace and in public accommodation. In signing the bill, President George H.W. Bush said, "Let the shameful wall of exclusion finally come tumbling down."
When former Supreme Court Justice Sandra Day O'Connor spoke at Roanoke College recently, she discussed how public opinion often lags behind judicial opinion. In fact, she cited the famous Loving v. Virginia case as an example of how a law, supported by a majority of citizens, can be discriminatory and unconstitutional.
In this 1967 landmark civil rights case, the U.S. Supreme Court unanimously overturned Virginia's anti-miscegenation law banning interracial marriage. This ruling effectively invalidated similar laws in 16 other states.
While equality for gay men and lesbians is making slow but steady progress at the federal level, it will likely take a U.S. Supreme Court decision to bring marriage equality to all citizens.
Congress recently signed the Matthew Shepard Hate Crimes bill, extending protections to victims of violence based on sexual orientation and gender identity. The federal Employment Non-Discrimination Act is likely to pass in the coming months followed, I hope, by a repeal of Don't Ask, Don't Tell.
Marriage equality, on the other hand, has been defeated at the ballot box in 31 states. Some margins have been thin but the results consistent. It will be up to our courts to make the final determination if it is constitutional to grant civil rights to some but not all couples. They will have to lead the way as public opinion evolves.
Marriage equality is not just a matter of principle. The U.S. federal government confers some 1,100 protections and responsibilities on married couples, according to the Government Accountability Office. These include access to benefits including Social Security and health care.
To paraphrase President Obama quoting Dr. Martin Luther King Jr., the arc of history bends toward justice but we must assist the bending. The right case brought before the right court will ultimately overturn those voter referenda. I do believe gay men and lesbians will gain full citizenship in this country eventually. My partner and I celebrated our 25th anniversary last month. We're still waiting.
