The question of referendums has arisen in connection with civil unions. The yeas and nays, naturally, are polarized. Once a question has been proposed and answered, sure as shooting there will be polarization – even if the question is: Should there be non-binding referendums?
Decisions of any kind are necessarily divisive. Once I’ve decided that binding referendums may or may not be advisable, I have courted opposition from everyone who believes that my decision – whatever it may be – is wrong. Once I’ve decided to leave my house and travel to a store to buy shoes, I have set my face against those who believe it would be much better for cows if I should go barefooted.
An artful distaste for polarization – as if any chosen course of action may be implemented in a democracy without divisions – has caused supporters of civil unions and marriage for gays to argue that even a non-binding referendum on the question of “civil unions” would be needlessly divisive.
Non-binding referendums, it has been asserted, bind no one and therefore are unnecessary in republican forms of government in which the people elect representatives to discharge their interests. In a republican form of government, representatives of the people are supposed to re-present and cast into laws the needs and desires of their constituents.
But suppose, just to suppose, that the governing body has for some reason become corrupted and may safely ignore wishes of the people. In such circumstances, would not binding referendums be necessary as a corrective? That is the important question. And it is a question proponents of gay marriage would rather not answer.
People in Connecticut seem to be split about fifty-fifty on the question of civil unions. The split is wider on the question of gay marriage. It is conceivable that legislation establishing civil unions might be approved in a non-binding referendum; gay marriage almost certainly would fail in an up or down vote on the question.
When proponents of gay marriage say they are opposed to non-binding referendums, they mean they are opposed to any measure that may doom the future prospect of gay marriages.
The legalization of gay marriage looks promising in Connecticut – even though a majority of the people may disapprove of it. Gay marriage did not become state law in Massachusetts because a majority of the residents viewed outmoded marriage laws as a deprivation of civil rights and instructed their representatives to seek a legislative remedy. The Massachusetts’ Supreme Court struck down as unconstitutional laws prohibiting gay marriage and forced the state’s legislature to allow the practice.
However much one may agree or disagree with gay marriage as such, it is impossible to view the process in Massachusetts or Canada as either “democratic” or “republican.” Some critics of the court have suggested that the word “autocratic” might be more to the point.
Because people in the United States do not approve of judicial autocracy, they have sought remedies to prevent courts from radically altering basic social institutions that have stood the Western world in good stead for thousands of years.
Defense of Marriage Acts have been passed in thirteen states because they are seen a legislative shield that may prevent non-democratic and non-republican judges from overturning thousands of years of Western jurisprudence, in the process violating the will of the majority of people who suffer under their autocratic and imprudent judgments. It is for very good reasons that the root of the word “jurisprudence” is “prudence.”
Democracies can withstand divisions that occur as a result of majority rule when – and only when – fair processes have been fairly applied. It is when one branch of the government at the expense of another unfairly upsets the delicate constitutional balance of powers by arrogating to itself extra-constitutional powers that a sundering polarization occurs. Courts so arrogant must be rebuked.
The weakest argument deployed by those who object to binding or non-binding referendums is that such devices are inimical to good republican government.
Referendums in municipal government across the state are so common – In Vernon we are in the midst of a series of seemingly endless binding budget referendums – as to be unremarkable. And these referendums occur without damaging at all the republican virtues of the town’s politicians – most of whom are anxious to know what the people they are sworn to serve think and want.
It is the safe and secure incumbent who does not like referendums -- because they are a bar to autocratic government. But we democrats who live in Vernon say if binding referendums are good enough for our town and most other municipal governments, they are good enough for the state as well.