Maryland's vote for same-sex marriage and the Dream Act runs counter to history, political science and human nature — a majority of citizens upholding laws that benefit distinct minorities. I think a little more attention must be paid to this. I find it extraordinary.
Put to a popular vote, the civil rights of gay and lesbian couples to marry had been shot down 32 times in states across the nation, proof of the majority's power to limit the rights of a minority group or even oppress it. This has been referred to as the "tyranny of the majority." Others defend it as simple winner-take-all majority rule.
Either way, it's a reality of democratic process — the right of citizens to petition to referendum anything their representatives might have turned into law, even one designed to protect or expand the rights of a minority.
After the Maryland General Assembly finally legalized same-sex marriage, opponents started a petition drive to get the new law on the ballot. Neil Parrott, a Republican legislator from Washington County, came up with online forms to make the process easier. He did the same for the anti-Dream Act drive. It worked. Thus Question 6 (same-sex marriage) and Question 4 (in-state tuition rates for undocumented immigrants, the Dream Act kids.)
Parrott and his supporters had every right to do this, but it didn't feel good. No majority would ever support issues that primarily affect minorities. Or so I thought, and for good reason.
My all-star example of the problem with such plebiscites is the Civil Rights Act. Imagine what would have happened had it been put to a popular vote instead of a vote of Congress in 1964, or if state versions of the act had been petitioned to referendum. The laws would have failed a popular vote and Jim Crow would have lived on. The majority simply would not have heeded the minority's plea for equality.
"We should not be putting civil rights issues up to a popular vote to be subject to the sentiments, the passions of the day. No minority should have their rights subject to the passions and sentiments of the majority."
Cory Booker is the mayor of Newark, N.J. He made that comment this year, after Jersey's Republican governor, Chris Christie, vetoed the state legislature's legalization of same-sex marriage. Christie said, "An issue of this magnitude and importance ... should be left to the people of New Jersey to decide."
In politics, that's called taking a walk. Christie didn't want to stick his neck out on gay marriage. He knows it's not an issue of "magnitude and importance" to most people. It's a matter of civil rights and human justice for a minority of our citizens. It challenges elected leaders to display courage of conscience and do the right, if not popular, thing.
So, given all that, I was pessimistic about Maryland making history and upholding the rights of gay and lesbian couples to be married under state law like everyone. Over the summer, I didn't believe the polls that indicated healthier-than-expected support for the law. "The majority never votes in the interest of a minority," I said over more than one cocktail.
But, something happened on the way to Question 6's demise. Fifty-two percent of the Marylanders who voted in Tuesday's election supported it.
"On matters like this," says Ken Mehlman, the former Republican national chairman who came out of the closet two years ago, "people don't vote based on politics, they vote on what they know and what they experience in their lives. That has a huge impact on attitudes."
Mehlman, a Baltimore native who served as a campaign manager for President George W. Bush in 2004, helped raise funds in support of Question 6's passage. He's seen public attitudes about homosexuality change over the years, with support increasing as more men and women are open about their sexual orientation.
"A lot more people are aware of gays and lesbians because they know them in their lives, or from what they see on TV, or because they work with people who happen to be gay," Mehlman said from his office in New York. "And they see them denied a fundamental right [legal marriage], something that's important in their own lives. And that strikes people as unfair and wrong."
Of course, 30 states still define marriage as a heterosexual partnership. So whether the changing attitudes Mehlman describes will lead to greater marriage equality across the land remains to be seen. The Supreme Court could have the final say.
In the meantime, political leaders in Maryland should take comfort in the votes cast here Tuesday for two of the laws they promulgated — for same-sex marriage and for the Dream Act.
In both cases, legislators and the governor did the right thing on behalf of minority populations. And, instead of striking down those actions, Maryland citizens upheld them. The majority took up for minorities. That should be savored as extraordinary, and even encouraging.
