Principled Progressive: Legislative Legitimacy Loopholes

Editor’s note: This article was initially published in The Daily Gazette, Swarthmore’s online, daily newspaper founded in Fall 1996. As of Fall 2018, the DG has merged with The Phoenix. See the about page to read more about the DG.

On June 24th, 2011, my home state of New York became the sixth state to legalize same-sex marriage. After repeated failures in previous sessions of the state legislature, Governor Cuomo finally corralled a majority in the State Senate by convincing four Republican state senators to cross party lines and vote for marriage equality. It was joyous day for the gay and lesbian couples in New York, who for too long were denied by their government the legal rights and benefits afforded by marriage (though they are still denied the full legal benefits and protections due to the odious National Defense of Marriage Act). I joined the revelers with fellow Swatties outside the Stonewall Inn, the historic ground zero for the gay rights movement in America, in celebration of a day too long in the making.

But, as supporters of the bill were celebrating, its opponents were brooding loudly and angrily. They charged supporters bribed their way to a majority by promising to support senators that voted for equality. They saw legislative open meeting laws flaunted and mandated review times for bills ignored. Lawsuits were filed seeking to overturn the law. The very same people that decry judicial activism when judges rule to uphold equal rights and marriage equality want an activist judge to strike down a law they disagree with. Funny thing how being on the wrong side of a vote sends equality opponents into the arms of the people they so despise.

Finally, they charged that the legislature is an inappropriate platform to decide who is and who isn’t eligible to marry. They believe that the legislature is undermining “the will of the people” and oversteps its authority by extending basic civil rights to all. This position contradicts previous actions taken by the anti-gay rights brigade. Prior to the passage of marriage equality in legislative bodies, the anti-gay crusade have not been shy about using the legislative process to advance policies that they consider just – the National Defense of Marriage Act being the most egregious example. But, once legislatures change their tunes and become more receptive to an equal rights agenda, these legislatures suddenly lose their legitimacy.

Such an anti-legislative stance by groups like the National Organization for Marriage (NOM) in the wake of a great victory for the LGBTQ community is not surprising, but their stance has profound consequences for representative government if carried to its logical conclusion. The question NOM and its allied groups have to answer is: what makes marriage equality so unique that duly elected representatives in state and federal legislatures don’t have the authority to pass it? I fail to see any reasonable bright line they could draw to separate the issue of marriage equality from a partial-birth abortion ban, or a revocation of funding for Planned Parenthood, or a ban on federal funding for abortion, or a decision on what agencies to fund on what level, or an expansion of voting and civil rights, or…you get the point.

Undermining the legitimacy of the legislature as the represented will of the people undermines the point of a legislature altogether. We elect representatives to make decisions on our behalf, because we cannot, as a nation or a state, all join together and cast votes on all the issues that come before us. When we try to do that, it ends in disaster (as is the case in California, where the proposition system has morphed a state that was once a beacon of middle class growth and good governance into one is functionally ungovernable).

But, even if social reactionaries succeed in destroying legislative legitimacy, as they have tried to do with judicial legitimacy, these forces will undoubtedly put up some new opposition when a state succumbs to the so-called sodomites at the gates and legalizes same sex marriage through the ballot box (as polling trends suggest). I have a hard time believing that socially conservative fundamentalists will say, “OK, you secular progressives win, the people have expressed their sovereign will, and we can’t ignore the will of the people any longer.” Their history of moving from one fallback position to another seems to preclude this. I imagine it will look something like Rick Santorum’s opposition to contraception – you know, the argument that says society can’t do things that are in opposition to God’s will. Perhaps the madness will only end when God descends from the heavens and asks the rhetorical question that befuddles me to this very day “if I hate homosexuals, why do I keep making them?”