Colorado voters facing multiple ballot measures concerning same-sex unions might be forgiven for asking, "What the heck is going on here?"
The answer lies in the state's easy-access ballot.
"National interests in some cases, state interests in others, have figured out you can bypass the legislature by finding one of the states that has the initiative, the referendum and the recall," says Colorado College political science professor Bob Loevy.
Colorado requires relatively few valid signatures just 5 percent of votes cast for the office of secretary of state in the previous general election to place an initiative on the ballot. This year, that amounts to 67,829 registered voters.
Use of the initiative in Colorado began increasing in the late 1980s, when social issues replaced economics as the main distinction between the Democratic and Republican parties, Loevy says. It was further popularized by a 1988 U.S. Supreme Court decision invalidating Colorado's ban on paid signature-gatherers.
"Whatever your pet social or economic project, one way to not only get it established but get it put in the state constitution ... is by raising some money or taking money of your own and paying people to get the signatures to get your issue on the ballot," Loevy says. "Initiated ballot issues are written by whoever has the money to pay the signature-gatherers, and they write it in ways that suit them, not the general public."
The result is a form of one-group or one-man rule that hijacks the legislative process, Loevy says. And when the possible outcome is a change not to state law but to the state constitution, that's disturbing.
"Constitutions are not supposed to be where you put things that temporary majorities support," he says. "The big problem is that it's turning the constitution which should be based on the major governing principles of our society into legislation."
Groups who employ initiatives often cite unresponsive legislators or "activist judges," a term currently in vogue with conservatives unhappy about court decisions favoring same-sex couples.
In a statement following the recent Senate defeat of the federal Marriage Protection Amendment, Focus on the Family founder James Dobson vowed to protect marriage "from renegade judges." In 2004, he blasted "the imperious judiciary" and a "tyrannical judiciary" for decisions that favored same-sex couples.
Bishop Phillip Porter uses the phrase "activist judges" no fewer than three times in a statement explaining the need for Initiative 83, which proposes a constitutional amendment reiterating Colorado's one-man, one-woman statutory definition of marriage.
"We find too many judges making new laws," Porter says. "Judges are historically chosen to carry out the will of the people as the people have expressed it."
Actually, that's the role of the legislature. Judges are charged with determining the constitutionality of laws to ensure that the will of the majority does not needlessly trample the rights of the minority, which it frequently has.
"Having a constitutional framework that was interpreted and applied by the judiciary was meant to limit majority rule or straight democracy," says attorney Brad Sears, executive director of the Williams Institute on Sexual Orientation Law and Public Policy at the University of California, Los Angeles.
"To say now that these are "activist' judges because they're making these decisions and we have to follow them well, that's exactly their role," Sears explains. "We wouldn't need them to be protected and appointed for life if they were just making decisions everyone liked."
In modern times, the "activist" label has been pinned to judges whose decisions banned school segregation, permitted abortion, protected flag-burning as a form of political expression, and allowed interracial marriage.
In the key interracial marriage case, Loving v. Virginia (1967), the Supreme Court affirmed that the freedom to marry is "one of the vital personal rights essential to the orderly pursuit of happiness by free men." The opinion declared anti-miscegenation laws unconstitutional after the state failed to establish a legitimate purpose "independent of invidious racial discrimination."
Although the Loving court did not consider same-sex marriage, the Massachusetts Supreme Judicial Court cited the case in its 2003 decision permitting gay couples to marry.
"The right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare," the court wrote in Goodridge v. Department of Public Health. "In this case, as in Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance the institution of marriage because of a single trait: skin color in Loving, sexual orientation here.
"As it did in Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination."
While acknowledging "deep-seated religious, moral and ethical" objections to same-sex marriage, the court held that Massachusetts, like Virginia in the '60s, had not provided a "constitutionally adequate" defense of its marriage policy.
"Our obligation is to define the liberty of all, not to mandate our own moral code," the court wrote.
By contrast, judges have consistently upheld bans on another form of marriage polygamy beginning with Reynolds v. U.S. (1878).
The specter of polygamous marriage is frequently raised by gay-rights opponents who warn that legalizing same-sex marriage will open a Pandora's box of non-traditional unions. (In a radio broadcast last fall, Dobson predicted not only group marriage but the possibility of marriage between "daddies and little girls" and "a man and his donkey.")
Yet precedent established in Reynolds expressly forbids "plural marriages."
"Precedent is very important the idea of stare decisis, that there should be controlling principles that last over time and prevent courts from acting arbitrarily," says New England School of Law professor Lawrence Friedman. "There is no precedent anywhere that suggests anyone views marriage as anything other than a binary relationship.
"It seems reasonable to the courts that, when you get beyond binary marriage, there's a possibility that coercion is involved, and that some people are not entering it willingly. The same reasoning applies with people under the legal age of consent."
By contrast, same-sex marriage is destined to join a long list of social movements toward equality, Loevy says.
"Thomas Jefferson let the cat out of the bag when he said all men are created equal," he says. "If you look back over American history, there have been setbacks, but there's a progressive movement to add more and more groups to what we call a status of equality.
"The message of America is, "Deal me in.' Everyone wants to be dealt in on equality and fair treatment. ... [Gays] are just right in line."
They've come closest in Massachusetts, where same-sex couples marry, and life goes on.
"Here in the commonwealth, we have discovered the sky has not fallen and things have not changed," Friedman says. "It does not affect most of our lives at all."
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