Who Do We Want Deciding Gay Marriage?

2009 RI Pride Parade

The Rhode Island House approved a bill last week that would permit same-sex marriage in the state. RI, which currently allows civil unions, is the only state in New England not to permit gay marriage. The bill faces an uncertain fate in the RI Senate.

It’s incredible how far the gay marriage debate has come in a few years. In the 2004 presidential election, George W. Bush came out in support of a constitutional amendment banning gay marriage, and used the issue to help secure a narrow win over John Kerry. Nine years later, President Obama devoted some of the most forceful rhetoric in his second inaugural address to reaffirm his commitment to gay rights.

All this comes with the caveat that a majority of states ban same-sex marriage. For advocates of gay marriage, however, the trends are positive. Three states voted to allow gay marriage in 2012. The 2011 repeal of the military’s “don’t ask, don’t tell” policy occurred without much fanfare. And public opinion has also shifted substantially. According to the New York Times:

In a Pew poll conducted in October, 49 percent of respondents said they favored allowing gays and lesbians to marry legally and 40 percent were opposed. Four years earlier, in August 2008, the numbers were just about reversed: 39 percent in favor and 52 percent opposed.

Why this shift in public opinion? Vice President Biden credited the gay characters on Will & Grace, which sounds a bit silly if not totally implausible. As of last year, 60% of the public stated they had a friend or family member who is gay, a sharp increase from ten years ago. Younger people are much more likely to support gay marriage, probably because they have less ties to religious tradition and more ties to gay friends and family.

The expansion of gay rights offers a contrast with the expansion of civil rights. The courts, and eventually the Johnson administration, took the lead in ending segregation and establishing civil rights for African Americans. It’s important to remember that these breakthroughs were the hard-fought victories of courageous civil rights leaders. But the point is that these rulings and laws were forced on a largely unwilling public. A Gallup poll recorded that not until 1997 did support for interracial marriage reach majority levels in the United States. Public opinion eventually caught up to the lawmakers, but it took a long time.

Political scientists have identified two models of democratic representation: “delegates” and “trustees.” Representatives acting as delegates respond to the will of their constituents and vote accordingly. Trustees may listen to their constituents, but use their own judgment when formulating policy. Generally, politicians embody both models, often on different issues: it’s common for Congress to act as delegates when dealing with social issues, and trustees on foreign policy.

Which model is better? When looking at the example of civil rights, the trustee approach taken by those judges and politicians seems not only justified, but demanded in the face of the moral outrage of segregation. But this approach has its downsides. Justice Ruth Bader Ginsburg, writing before her appointment to the Supreme Court, noted that in the early 1970s there was increasing support for the expansion of abortion rights. The Supreme Court’s decision in Roe v. Wade, which legalized abortion, short-circuited any legislative solution to the debate. This “heavy-handed” approach, Ginsburg said, most likely contributed to a backlash that fuels the bitter fights about abortion we have today.

There are two cases same-sex marriage cases before the Supreme Court this term, and some gay rights advocates fear this judicial challenge might be premature. One case involves the federal Defense of Marriage Act, which mandates that the federal government only recognize heterosexual marriages. The court appears likely to strike down this law, so that the federal government can recognize gay marriages in states allowing gay marriage. The other case asks the court to strike down an amendment to California’s constitution, known as Proposition 8, which bans gay marriage. The court could go so far as to find that there is a constitutional right to same-sex marriage, which would invalidate every state law banning such marriages. This appears unlikely, and gay marriage advocates worry that if the court upholds Proposition 8, the fight for same-sex marriage could be set back for years. There is also a danger that if the court finds that there is a right to same-sex marriage, there could be a backlash similar to what happened after Roe v. Wade.

Governor Chafee has said he doesn’t support a statewide referendum to settle the matter of gay marriage in RI. He expressed his belief that “in a representative democracy lawmakers have the responsibility to make decisions on matters both monumental and routine.” The shift in public opinion means the same-sex marriage will probably come to RI soon, if not in this legislative session. The debate over gay marriage gets at fundamental questions concerning how thorny issues are resolved in a democracy. Our government was set up to ensure protection of the rights of the minority, but how can those rights be protected if representatives are merely mouthpieces of the majority? It’s an issue our country has struggled with for a long time, with a mixed record of success.