Can you help me understand democracy please?

[Heather in Neverland]

I need someone who understands government better than I do to explain this to me...

 

So the Internet is abuzz right now about what's going on in Michigan with same sex marriage. I've been reading a few articles and as I understand it:

 

1. Someone or some organization got a proposal on a ballot in 2004 to ban same-sex marriages (I can't figure out who. The articles I've read just keep referring to "anti-gay" groups which seems vague to me. And although I was in Michigan at that time, I cannot for the life of me remember this.). And according to what I read 59% of voters voted in favor of the ban.

 

2. 10 years later a lesbian couple sued ...the state of Michigan I guess?... To overturn this law.

 

3. A federal, not a state, court agreed with them and overturned it.

 

4. Another federal court higher than that just put a hold on the overturning of the law.

 

The topic of the law, same sex marriage, is not the question. My question is why do we bother to let people vote on something if a judge can just overrule that vote? How is that democracy?

 

One article I read stated that the public opinion in Michigan on same sex marriage has changed in the last 10 years. I can believe that. So why not just put it to a vote again?

 

It just seems disingenuous to let people vote on a topic and then the federal judges say "nah, you didn't vote the way we wanted you to so we are overriding you."

 

Wouldn't it better to put it to a vote again now that it's been a decade since the original vote?

 

Some people are thrilled with the decision of the district court, some are not. It doesn't really affect me either way. But the tides could turn and the next judge that overturns something the people voted for could be something that does directly affect me.

 

So my problem is not with this particular lawsuit but with the idea in general that one federal judge could overturn something that almost 5 million people voted on.

 

Just struggling to understand "democracy" right now.

[Jane in NC]

Just because people vote for something does not mean the thing for which they voted is constitutional.  Suppose a majority vote to jail all homeschoolers--or that restaurants can only sell vanilla ice cream.

 

The US is not a pure democracy but a federal republic.

[Heather in Neverland]

Just because people vote for something does not mean the thing for which they voted is constitutional. Suppose a majority vote to jail all homeschoolers--or that restaurants can only sell vanilla ice cream.

 

The US is not a pure democracy but a federal republic.

That makes sense. But then shouldn't there be some kind of "screening process" before proposals even make it to a ballot? If something is not constitutional then why allow it to be voted on in the first place?

 

Let's say some random group DID want to jail all homeschoolers... Why should that even be allowed on a ballot? Especially if a some judge can just say "no, that's ridiculous. You can't have that law." Wouldn't the people then say "well, then why waste everyone's time voting on it in the first place?"

 

I just don't think the process makes any sense.

[Jane in NC]

That makes sense. But then shouldn't there be some kind of "screening process" before proposals even make it to a ballot? If something is not constitutional then why allow it to be voted on in the first place?

 

Let's say some random group DID want to jail all homeschoolers... Why should that even be allowed on a ballot? Especially if a some judge can just say "no, that's ridiculous. You can't have that law." Wouldn't the people then say "well, then why waste everyone's time voting on it in the first place?"

 

I just don't think the process makes any sense.

 

The law is not always clear because of the lens of culture.  For example, consider Loving vs. Virginia, the Supreme Court case that made laws against interracial marriage unconstitutional.  Today we are outraged at the thought of such a ban but for years such laws were not questioned.

 

[Heather in Neverland]

The law is not always clear because of the lens of culture. For example, consider Loving vs. Virginia, the Supreme Court case that made laws against interracial marriage unconstitutional. Today we are outraged at the thought of such a ban but for years such laws were not questioned.

 

I totally agree which is why I think it should be put to a vote again. If the culture has changed, and I agree that it has, why would we not put it to a vote again rather than relying on the federal government to once again tell us what is best for us?

[5of5]

It could be put to a vote again, but that is not always quick or easy (depending on the state); it can be quicker to get something overturned in the court system. 

[poppy]

The answer is, you can't vote to deny someone basic civil rights and have it stand up in court.  If it's something the courts have already specifically spoken on, you can't make a law about it, but if it's vague, you can suggest  a law to give an indication of the people's voice.  "The state of Michegan bans abortions" would never happen, abortion is protected by the courts.  Since the courts hadn't spoken on same-sex marriage, they were allowed to have that ballot item.

 

 

 

[poppy]

I totally agree which is why I think it should be put to a vote again. If the culture has changed, and I agree that it has, why would we not put it to a vote again rather than relying on the federal government to once again tell us what is best for us?

 

Would you really want to live in a 'majority rules' culture without the power of the courts to protect our basic liberties?

Would you like it if, for example, the state of Utah put in a ballot measure to allow only Mormons to vote?

[Jane in NC]

Consider this. Suppose there is a group that is promoting a non-constitutional idea--say banning a particular religious group.  Lots of people in Sample State believe that the group is not a religion but a cult.  There is a Think Tank that does not like this religion so they develop a strategy to have the people in Sample State vote on banning the religion during an off year when voter turnout is low. They pay for emotional advertising and develop a grass roots effort to get the vote out. Some people are indifferent to the religious group--they don't care if they are legal or not so they don't vote.

 

So we have freedom of religion in this country but since some people in Sample State do not think that the group is a religion--rather a cult--they do not believe they are denying the group their constitutional right.

 

This is why court system steps in. 

 

 

[JennyD]

That makes sense. But then shouldn't there be some kind of "screening process" before proposals even make it to a ballot? If something is not constitutional then why allow it to be voted on in the first place?

 

Let's say some random group DID want to jail all homeschoolers... Why should that even be allowed on a ballot? Especially if a some judge can just say "no, that's ridiculous. You can't have that law." Wouldn't the people then say "well, then why waste everyone's time voting on it in the first place?"

 

I just don't think the process makes any sense.

 

As a general rule, federal judges are not allowed to give 'advisory opinions' -- i.e., rule on a prospective case.  The theory is that advisory opinions violate the separation of powers.

 

State attorneys general can and should give their own opinions as to whether a particular law or initiative might be vulnerable to constitutional challenge.  For example, the state legislature in my own state is currently considering a law that would limit picketing by labor unions.  The state attorney general has written an opinion explaining why he thinks that this violates the First Amendment -- as in, a federal court would likely rule that the law was unconstitutional, based on the history of how courts have ruled on similar First Amendment questions in the past.  The legislature, though, can certainly still go ahead and pass the law.  And if it does, then the executive branch has the obligation to enforce it (e.g., the police will have to ticket picketers who violate the new law).  A picketer who is arrested can then challenge the constitutionality of the new law.  It is only at that point -- when there is an actual 'case or controversy' -- that the courts are allowed to rule on the question of whether the law violates the First Amendment.  

 

Of course, plenty of times state legislatures do withdraw proposed legislation when the attorney general warns that it might be unconstitutional.  The voter initiative process is more complicated and varies from state to state, but the same general principle applies -- the judicial branch cannot prospectively strike down legislation.  

[Heather in Neverland]

Would you really want to live in a 'majority rules' culture without the power of the courts to protect our basic liberties?

Would you like it if, for example, the state of Utah put in a ballot measure to allow only Mormons to vote?

But that's my point.

 

Why does the government even allow proposals that violate basic liberties to be voted on? Either there should be some screening process that weeds these kinds of things out, or we are allowed to propose and vote on anything we want and we live with the results.

 

Suppose Group A decides they only want Mormons to vote in Utah. They go and do whatever it is you currently have to do to get this idea put on a ballot in the next election (get a lot of signatures? A congressman to sponsor it? Not really sure on this detail).

 

The vote comes along and lo and behold, it passes. Now only Mormons can vote in Utah.

 

Then after the vote a judge says "What? Only Mormons can vote in Utah? That is a violation of basic liberties and the constitution. I am overturning that."

 

Wouldn't all the people who took off work early to go vote on the measure wonder what the point of the vote was?

 

Shouldn't someone with some kind of authority, before this idea got put to a vote, have said "Uh no...we don't allow crazy, unconstitutional ideas like that on ballots. Sorry."

 

Because if we do allow votes an all sorts of crazy, unconstitutional ideas knowing we are just going to overturn them if they pass, then why vote at all?

[Serenade]

I think there is also the issue of states' versus federal rights. The federal government seems to be taking over more and more powers that traditionally have belonged to the states. It seems to me that there really aren't states' rights anymore.

[Heather in Neverland]

As a general rule, federal judges are not allowed to give 'advisory opinions' -- i.e., rule on a prospective case. The theory is that advisory opinions violate the separation of powers.

 

State attorneys general can and should give their own opinions as to whether a particular law or initiative might be vulnerable to constitutional challenge. For example, the state legislature in my own state is currently considering a law that would limit picketing by labor unions. The state attorney general has written an opinion explaining why he thinks that this violates the First Amendment -- as in, a federal court would likely rule that the law was unconstitutional, based on the history of how courts have ruled on similar First Amendment questions in the past. The legislature, though, can certainly still go ahead and pass the law. And if it does, then the executive branch has the obligation to enforce it (e.g., the police will have to ticket picketers who violate the new law). A picketer who is arrested can then challenge the constitutionality of the new law. It is only at that point -- when there is an actual 'case or controversy' -- that the courts are allowed to rule on the question of whether the law violates the First Amendment.

 

Of course, plenty of times state legislatures do withdraw proposed legislation when the attorney general warns that it might be unconstitutional. The voter initiative process is more complicated and varies from state to state, but the same general principle applies -- the judicial branch cannot prospectively strike down legislation.

This is a wonderful explanation. Although I admit that it doesn't make me feel a whole lot better. So essentially someone IS giving the state legislature advice on these controversial proposals and the legislature just chooses to ignore it. And we give people the vote. They vote. It then gets overturned. The attorney general gets to say "I told you so." The state legislature gets to appear like they were trying to please the people or the special interest group that was paying them knowing all along that it would get struck down later.

 

So it's all a big farce.

[poppy]

As I said earlier, votes don't happen on things the courts have ruled on.  It's only when there is a gray area, or when someone is trying to find a chink in the armor of an unpopular law, that these votes can happen. They are in part trying to influence the courts.

 

And they are trying to put state's rights ahead of federal law in some cases- for example, DOMA, a repugnant and obviously unconstitutional law that was in effect for over 15 years.  Laws can be battlegrounds.

 

[5of5]

This is a wonderful explanation. Although I admit that it doesn't make me feel a whole lot better. So essentially someone IS giving the state legislature advice on these controversial proposals and the legislature just chooses to ignore it. And we give people the vote. They vote. It then gets overturned. The attorney general gets to say "I told you so." The state legislature gets to appear like they were trying to please the people or the special interest group that was paying them knowing all along that it would get struck down later.

 

So it's all a big farce.

 

I wouldn't claim that the current system is perfect, but alternative systems could have major problems too.  If someone (or even a panel) decided what laws could be voted on, then those people would be, de facto, a fourth branch of government with enormous power.

[livetoread]

Sometimes it is a farce, yes. But at least there are some checks and balances. I'm not sure that anyone is setting out to go through a charade though (at least most of the time). Remember, that MI law stood for 10 years. It often isn't clear what is constitutional and most judges feel better ruling on things that have precedence.

 

My dh is a municipal attorney (like a DA for a city). His answer about the legality of things is more often, "It depends," rather than a clear "yes" or "no". That isn't a dodge, it's just that the law has to be interpreted and if no one has interpreted it in that exact way before and received a clear ruling on that interpretation, then they are in unclear territory. Even if the city council goes against his advice and passes something questionable, someone else has to care enough to bring a lawsuit. A lot of questionable policies stand because no one cares enough to tackle them.

 

Gay marriage was "clearly" unconstitutional for a long time because almost everyone involved in the process of making, enforcing, and interpreting our laws thought gay marriage was wrong. As public sentiment shifted, questions arose about the constitutionality of denying it. When enough cared, it became unclear territority, because not enough rulings had been handed down. We are still in that territority, though moving rapidly towards saying it is unconstitutional to deny it.

 

I don't know who said, "The law is a living thing," but it is so true.

 

Edited to try and be more clear. It wasn't that gay marriage was "clearly" unconstitutional, it's more that denying gay marriage was "clearly" constitutional. Denying gay marriage wasn't questioned much because it was simply assumed that lgbti people were deviant and not good for society; they were to be marginalized and ignored, not encouraged in any way.

[Heather in Neverland]

 

Gay marriage was "clearly" unconstitutional for a long time because almost everyone involved in the process of making, enforcing, and interpreting our laws thought gay marriage was wrong. As public sentiment shifted, questions arose about the constitutionality of denying it. When enough cared, it became unclear territority, because not enough rulings had been handed down. We are still in that territority, though moving rapidly towards saying it is unconstitutional to deny it.

 

I don't know who said, "The law is a living thing," but it is so true.

The very fact that it has been ten years since the last vote is what makes me want it to be voted on again. If public sentiment is shifting, shouldn't that public have a right to be heard rather than having a decision from one man handed to them?

 

Think of it this way... Ten years ago people in Michigan voted to ban gay marriage because, as you put it, "almost everyone involved in the process of making, enforcing, and interpreting our laws thought gay marriage was wrong." That is true.

 

Ten years later public sentiment seems to be shifting all over the nation. Lots of states are allowing gay marriage. Some through voting and some through lawsuits. Ten years from now it is entirely conceivable that gay marriage will be legal in every state. Some states will be able to say "we voted it in because we want it" others will have to say "it's legal here because a judge said so."

 

We will never know which kind of state of Michigan is or would be in the future because someone else decided it rather than letting the people speak. Many people of voting age right now who might vote in favor of gay marriage weren't old enough to vote back in 2004. They will never get to vote on it, to show their support. Michigan will always be the state that was forced into it. Maybe some people are ok with that but others are not.

[poppy]

The very fact that it has been ten years since the last vote is what makes me want it to be voted on again. If public sentiment is shifting, shouldn't that public have a right to be heard rather than having a decision from one man handed to them?

 

Think of it this way... Ten years ago people in Michigan voted to ban gay marriage because, as you put it, "almost everyone involved in the process of making, enforcing, and interpreting our laws thought gay marriage was wrong." That is true.

 

Ten years later public sentiment seems to be shifting all over the nation. Lots of states are allowing gay marriage. Some through voting and some through lawsuits. Ten years from now it is entirely conceivable that gay marriage will be legal in every state. Some states will be able to say "we voted it in because we want it" others will have to say "it's legal here because a judge said so."

 

We will never know which kind of state of Michigan is or would be in the future because someone else decided it rather than letting the people speak. Many people of voting age right now who might vote in favor of gay marriage weren't old enough to vote back in 2004. They will never get to vote on it, to show their support. Michigan will always be the state that was forced into it. Maybe some people are ok with that but others are not.

 

Interracial marriage was made legal in a time when many Americans did not support its legality (1967).

Do you think the states should have waited for public approval to allow interracial marriage? 

 

That actually is what happened, in a sense.... from Wikipedia's Loving v. Virgina page:

Despite the Supreme Court's decision, anti-miscegenation laws remained on the books in several states, although the decision had made them unenforceable. In 2000, Alabama became the last state to adapt its laws to the Supreme Court's decision, by removing a provision prohibiting mixed-race marriage from its state constitution through a ballot initiative. 60% of voters voted for the removal of the anti-miscegenation rule, and 40% against.^[15]

 

Do you think the anti-miscegenation law should have been enforceable until that vote- that is, until 1999?

 

 

 

[Mergath]

I think there is also the issue of states' versus federal rights. The federal government seems to be taking over more and more powers that traditionally have belonged to the states. It seems to me that there really aren't states' rights anymore.

 

The states never had the right to pass unconstitutional laws.

[Heather in Neverland]

Interracial marriage was made legal in a time when many Americans did not support its legality (1967).

Do you think the states should have waited for public approval to allow interracial marriage?

 

That actually is what happened, in a sense.... from Wikipedia's Loving v. Virgina page:

Despite the Supreme Court's decision, anti-miscegenation laws remained on the books in several states, although the decision had made them unenforceable. In 2000, Alabama became the last state to adapt its laws to the Supreme Court's decision, by removing a provision prohibiting mixed-race marriage from its state constitution through a ballot initiative. 60% of voters voted for the removal of the anti-miscegenation rule, and 40% against.^[15]

 

Do you think the anti-miscegenation law should have been enforceable until that vote- that is, until 1999?

Of course not. But I would ask if it was ever put to a vote in Alabama before 2000 and if so, when? Perhaps if it had been put to a vote sooner it would have been voted out sooner?

 

If the proposal in Michigan had been just voted on last year then I would say it is overly optimistic to think the public had changed its mind. But it's been ten years. Can't we at least let them update their votes based on changing sentiment, or let new voters have a chance to be heard, before we just assume what their vote would be and give the decision to a judge instead?

[Excelsior! Academy]

Off topic a bit but the United States has a republic not a democracy.

 

 

 

 

[JennyD]

This is a wonderful explanation. Although I admit that it doesn't make me feel a whole lot better. So essentially someone IS giving the state legislature advice on these controversial proposals and the legislature just chooses to ignore it. And we give people the vote. They vote. It then gets overturned. The attorney general gets to say "I told you so." The state legislature gets to appear like they were trying to please the people or the special interest group that was paying them knowing all along that it would get struck down later.

 

So it's all a big farce.

 

Well, it's certainly inefficient (as democracy generally is) but as a PP said, I don't think it's always a farce.  Sometimes, but more often than not, it's not entirely clear whether a particular law will be held to be unconstitutional or not.  For example, as much as I wholeheartedly support legislation that enshrines homeschooling rights, I think it is a very open question as to whether homeschooling is a federal constitutional right -- or in other words, whether the U.S. Supreme Court would overturn a state ban on homeschooling.  And if you made me put money down on it, my best prediction is that a conservative majority of the current Supreme Court would hold that no, there is no constitutional right for parents -- or at least non-Amish parents -- to homeschool their children. (The liberal-conservative split about homeschooling is largely reversed when it comes to the available constitutional arguments).  But can anyone be one hundred percent sure?  No way. You never know how the courts are going to rule until they actually do, and reasonable people can certainly disagree about how the courts might rule on a particular state law.  

 

The very fact that it has been ten years since the last vote is what makes me want it to be voted on again. If public sentiment is shifting, shouldn't that public have a right to be heard rather than having a decision from one man handed to them?

 

Think of it this way... Ten years ago people in Michigan voted to ban gay marriage because, as you put it, "almost everyone involved in the process of making, enforcing, and interpreting our laws thought gay marriage was wrong." That is true.

 

Ten years later public sentiment seems to be shifting all over the nation. Lots of states are allowing gay marriage. Some through voting and some through lawsuits. Ten years from now it is entirely conceivable that gay marriage will be legal in every state. Some states will be able to say "we voted it in because we want it" others will have to say "it's legal here because a judge said so."

 

We will never know which kind of state of Michigan is or would be in the future because someone else decided it rather than letting the people speak. Many people of voting age right now who might vote in favor of gay marriage weren't old enough to vote back in 2004. They will never get to vote on it, to show their support. Michigan will always be the state that was forced into it. Maybe some people are ok with that but others are not.

 

Two things:  The importance of the Supreme Court's decision overturning DOMA can't be overestimated.  Yes, this case was about a state law, but the lower federal courts operate in the framework that the Supreme Court establishes, and that is why you all of a sudden see these state bans dropping like flies in federal court.  

 

Second, I think that you are exactly right about the problems that can arise when courts make decisions that sharply conflict with public opinion, and in fact that is precisely why advocates of gay marriage pursued the incremental, state-by-state strategy that they did.  They learned not only from the civil rights movement, but also from Roe v. Wade, in which the Court arguably got too far out from social norms, and the ensuing backlash was and remains tremendous.  Advocates for same-sex equality have been playing the long game.  They've focused on marriage -- an inherently conservative and very popular American institution.  They pressed first for civil unions, then for marriage, and then challenged marriage bans *only* at the state level -- arguing in state court that such bans violated state constitutions -- all the while still working to reframe the public perception of gay people away from "half-naked leather-bound Gay Pride marchers" and towards "ordinary moms and dads just like you."   It has only been very recently that these legal challenges moved to the federal level, and in fact there was a lot of internal conflict around the DOMA case, with some advocates strongly arguing that it was just too soon and that the risk was simply too high.

 

It has been a brilliantly successful legal and political strategy, and I think it's because advocates for gay rights have all along been intensely, acutely aware of the dangers of legal victories that are widely perceived to be 'a decision from one man handed to' a resistant populace.

[Caroline]

Of course not. But I would ask if it was ever put to a vote in Alabama before 2000 and if so, when? Perhaps if it had been put to a vote sooner it would have been voted out sooner?

 

If the proposal in Michigan had been just voted on last year then I would say it is overly optimistic to think the public had changed its mind. But it's been ten years. Can't we at least let them update their votes based on changing sentiment, or let new voters have a chance to be heard, before we just assume what their vote would be and give the decision to a judge instead?

Because no one put it on the ballot. If someone had gone through the process to get it on the ballot, then Michigan could have voted again. But no one did that. Someone did challenge it in court. So that is how the law was overturned.

[AlmiraGulch]

Of course not. But I would ask if it was ever put to a vote in Alabama before 2000 and if so, when? Perhaps if it had been put to a vote sooner it would have been voted out sooner?

 

If the proposal in Michigan had been just voted on last year then I would say it is overly optimistic to think the public had changed its mind. But it's been ten years. Can't we at least let them update their votes based on changing sentiment, or let new voters have a chance to be heard, before we just assume what their vote would be and give the decision to a judge instead?

 

Frankly, the opinion of the people in the state of Michigan is irrelevant at this point.  Staging a costly election would be a waste of resources.

 

Federal courts have ruled repeatedly that state bans on same sex marriage are unconstitutional.  There is precedent.  Like you said, it is only a matter of time before these bans are challenged and overturned in every state, based on prior federal court rulings. 

[zoobie]

The judiciary overturning unconstitutional laws is an example of our system working, not failing. Sometimes bills are rejected by the executive branch before they become law, sometimes the judiciary has to get involved. The federal judiciary gets involved if there's a federal law or right at stake. Sometimes they reject cases that are obviously bad laws because there's no federal "in" to jurisdiction or there's no ripe claim.

 

Some bills get passed and signed into law that states know are patently unconstitutional, even under their state's constitutions. Those are a waste of time and money, but hey, voters elected these clowns and the mechanism in place is to vote for someone else next time. Sometimes laws get passed that are necessary and for all the right reasons, but the wording is vague or broad or there's some seemingly minute technicality. These get overturned, and the legislature fixes them and writes a better law. (Ex: the up skirt photo law in Massachusetts)

 

Sometimes courts get it right (Loving v Virginia), sometimes they get it wrong (Plessy v Ferguson) and correct themselves later (Brown v Board of Ed).

 

The founding fathers knew even the Constitution was an imperfect document that would need mechanisms to be altered.

[LucyStoner]

I totally agree which is why I think it should be put to a vote again. If the culture has changed, and I agree that it has, why would we not put it to a vote again rather than relying on the federal government to once again tell us what is best for us?

We should not be putting matters of civil rights on the ballot. That would be like saying that Jim Crow shouldn't have ended until it could be so by public vote. A public vote on such matters confers to the majority rights they should not have. For the record, I feel the same way about it when the public vote goes my way, as it did in 2012 in my state and others.

 

The judicial system plays a totally important and valid role in our government. It is not tyrannical for the courts to play their constitutionally described role. A small matter that is covered in 3rd grade civics- three branches, separation of powers.

[LucyStoner]

But that's my point.

 

Why does the government even allow proposals that violate basic liberties to be voted on? Either there should be some screening process that weeds these kinds of things out, or we are allowed to propose and vote on anything we want and we live with the results.

 

Suppose Group A decides they only want Mormons to vote in Utah. They go and do whatever it is you currently have to do to get this idea put on a ballot in the next election (get a lot of signatures? A congressman to sponsor it? Not really sure on this detail).

 

The vote comes along and lo and behold, it passes. Now only Mormons can vote in Utah.

 

Then after the vote a judge says "What? Only Mormons can vote in Utah? That is a violation of basic liberties and the constitution. I am overturning that."

 

Wouldn't all the people who took off work early to go vote on the measure wonder what the point of the vote was?

 

Shouldn't someone with some kind of authority, before this idea got put to a vote, have said "Uh no...we don't allow crazy, unconstitutional ideas like that on ballots. Sorry."

 

Because if we do allow votes an all sorts of crazy, unconstitutional ideas knowing we are just going to overturn them if they pass, then why vote at all?

Because sometimes it is not cut and dry what is constitutional and what is not. Also courts are generally not allowed to prevent a proposed law or even give an opinion on it, only block it or overturn it once it is not only passed but brought before them. This is how our system works. Thank goodness we don't live in an unchecked majority rules system. That would be miserable.

[Heather in Neverland]

Frankly, the opinion of the people in the state of Michigan is irrelevant at this point.

I guess that's where we differ. I don't think the votes of the people of this nation are irrelevant.

 

Let me give you an example. Ten years ago I am willing to bet that most of the people in my family voted for the ban. I don't know for sure. But based on what I know about them I can assume. They were not real keen on the idea of gay marriage. Ten years ago my cousin was 17 years old, and a lesbian, but none of us knew that.

 

Fast forward ten years later. Things have changed drastically in our nation. More people are open about being gay. More people are accepting of it. Everyone in my family knows about my cousin, and her partner, and have reacted in ways I could not have predicted... With love and acceptance.

 

Life and experience changes you. If gay marriage was put to a vote today, I guarantee most of my family would vote differently. That marks a drastic shift in their thinking and maybe they would like a chance to say "I was wrong and I want a chance to show that publicly with my vote." But they will never get to.

 

I don't think that is irrelevant.

[Caroline]

So what you are looking for is a way for Michigan to save face? Well they don't get to. They have had ten years to put something on the ballot overthrowing the previous ballot measure. They didn't. If you and your relatives wanted that opportunity, you all should have made it happen. You all couldn't be bothered. So the federal courts did it for you.

 

I guess that's where we differ. I don't think the votes of the people of this nation are irrelevant.

 

Let me give you an example. Ten years ago I am willing to bet that most of the people in my family voted for the ban. I don't know for sure. But based on what I know about them I can assume. They were not real keen on the idea of gay marriage. Ten years ago my cousin was 17 years old, and a lesbian, but none of us knew that.

 

Fast forward ten years later. Things have changed drastically in our nation. More people are open about being gay. More people are accepting of it. Everyone in my family knows about my cousin, and her partner, and have reacted in ways I could not have predicted... With love and acceptance.

 

Life and experience changes you. If gay marriage was put to a vote today, I guarantee most of my family would vote differently. That marks a drastic shift in their thinking and maybe they would like a chance to say "I was wrong and I want a chance to show that publicly with my vote." But they will never get to.

 

I don't think that is irrelevant.

[Heather in Neverland]

So what you are looking for is a way for Michigan to save face? Well they don't get to. They have had ten years to put something on the ballot overthrowing the previous ballot measure. They didn't. If you and your relatives wanted that opportunity, you all should have made it happen. You all couldn't be bothered. So the federal courts did it for you.

 

 

You are jumping to some pretty harsh conclusions. Save face? No. Admit they were wrong? Yes. And isn't that what we want as a society? To grow, get more educated on a topic, form new opinions, find new levels of acceptance of one another?

 

I mean sure, you can force it through and make gay marriage legal through court cases and get the right to marry but if the world is still a bitter place full of hatred for people different from you, did you really win anything?

 

And you need to admit that not many people actually know how to get something on a ballot. The entire legal process is so complex and the average person is just trying to make a living and get by. It's certainly not for lack of caring and the fact that you say we "couldn't be bothered" to do anything about it shows your attitude. You sound like someone who doesn't want people to admit they were wrong and change their minds. You just want to stick it to them for not coming to the same conclusion you did at the same moment you did. Well, thank goodness for clever people like you! Makes up for all the rest of us ignorant people, I guess.

[poppy]

 

 

I mean sure, you can force it through and make gay marriage legal through court cases and get the right to marry but if the world is still a bitter place full of hatred for people different from you, did you really win anything?

 

If you were gay, would you still feel that way?

If you were black in 1968, would you still feel that way?

I'm seriously amazed that the court of public opinion is more important than constitutional protections for minority groups.

[livetoread]

It's not irrelevant to them I know.

 

It would be great if majorities could value the civil rights of minorities and vote accordingly, but they sometimes don't. Should the minority have to wait until the majority gets its act together? Maybe some states would still have Jim Crow laws even now. It is healing for everyone if the majority gets to right a wrong. But there are downsides too.

 

What is voted on can be voted against later. A judicial ruling is more secure. Once a law is ruled unconstitutional, it can't be voted back in place. A federal ruling more secure yet, and a Supreme best of all, though still vulnerable. Civil rights are not supposed to be given or taken away based on the whims of a vote. Gay marriage was not considered a civil right before. Now enough people think it is to not only pass laws to support it but to back those laws up with a judicial stamp of approval.

[ktgrok]

Our government was designed with "checks and balances". No one branch (in this case the legislative) can have all the power. The Judicial branch has the authority to say nope, that law you passed goes against the constitution and therefore is invalid. The idea is that the constitution, and the judicial branch, protect the basic rights of any minority. We are not entirely majority rule. Now, had the law been considered in line with the constitution, it would have been allowed to stand until it was voted out. 

[Caroline]

Your question was why Michigan didn't get to vote again. The reason Michigan doesn't get to vote again is because the people of Michigan chose not to put the measure on the ballot. If was important to people to change their vote, they would have figured out how to put it on the ballot. It wasn't that important to people. How do things get in the ballot? People get the signatures necessary to put them there. So how long should the people of Michigan have to put it on the ballot? They have had ten years. How long is long enough?

 

You say people should be able to show they have chnaged their minds. I agree. But they haven't done that. The federal court system cannot put things in a ballot in Michigan. Only the people of Michigan can do that.

 

Unless someone puts it on the ballot, it doesn't get voted on. Someone put it on the ballot ten years ago. If that person has changed his/her mind, he can put it on the ballot again.

 

You are jumping to some pretty harsh conclusions. Save face? No. Admit they were wrong? Yes. And isn't that what we want as a society? To grow, get more educated on a topic, form new opinions, find new levels of acceptance of one another?

 

I mean sure, you can force it through and make gay marriage legal through court cases and get the right to marry but if the world is still a bitter place full of hatred for people different from you, did you really win anything?

 

And you need to admit that not many people actually know how to get something on a ballot. The entire legal process is so complex and the average person is just trying to make a living and get by. It's certainly not for lack of caring and the fact that you say we "couldn't be bothered" to do anything about it shows your attitude. You sound like someone who doesn't want people to admit they were wrong and change their minds. You just want to stick it to them for not coming to the same conclusion you did at the same moment you did. Well, thank goodness for clever people like you! Makes up for all the rest of us ignorant people, I guess.

[ktgrok]

This is a wonderful explanation. Although I admit that it doesn't make me feel a whole lot better. So essentially someone IS giving the state legislature advice on these controversial proposals and the legislature just chooses to ignore it. And we give people the vote. They vote. It then gets overturned. The attorney general gets to say "I told you so." The state legislature gets to appear like they were trying to please the people or the special interest group that was paying them knowing all along that it would get struck down later.

 

So it's all a big farce.

Yup, that's it in a nutshell. You can express your disdain by voting against things that are likely to be unconstitutional. That's what I do.

[Heather in Neverland]

. Gay marriage was not considered a civil right before. Now enough people think it is to not only pass laws to support it but to back those laws up with a judicial stamp of approval.

You're right, this is the ideal way to go... A law the voters said yes to and a judicial stamp of approval to seal the deal. I guess Michigan will never get that chance. What's done is done. :(

 

Well it's late here and I am off to bed. Thank you all for the thoughtful discussion.

[albeto.]

I mean sure, you can force it through and make gay marriage legal through court cases and get the right to marry but if the world is still a bitter place full of hatred for people different from you, did you really win anything?

 

YES! The people in the state of Michigan one a victory for civil rights, and that is good for everybody! Attitudes change as public policy changes. When oppression is no longer expected and protected, people start interpreting their environment accordingly. When drinking fountains are no longer labeled "Colored" and "White," people stop seeing people of color as "infringing" on the privileges everyone else is used to. The reason race is such a good analogy here is because it's the same issue - denial of civil rights based on cultural ideologies that were found to be antithetical to the rights as laid out in the Constitution. You don't have the right to oppress my civil rights, even if you think you have a really, really good reason for it. A whole state full of voters don't either, just because they share their opinion through a ballot box. So yes, a great thing has been done, and continues to be done state by state. If you think about it, most agencies don't voluntarily abdicate their control because people make a compelling moral argument. Most people rationalize their thoughts and beliefs, rely on confirmation bias, and are unaware of cognitive dissonance. The United States provides ways to do just this without resorting to forcefully making change, and one of the ways in which this is provided is to secure a legal arena in which arguments are protected from emotional outbursts and violent reactions. What you're witnessing is the end of a state sanctioned civil rights violation, and for that reason, we - Michigan, your family, my family thousands of miles away - won something. Something pretty big. 

[AlmiraGulch]

I guess that's where we differ. I don't think the votes of the people of this nation are irrelevant.

 

Let me give you an example. Ten years ago I am willing to bet that most of the people in my family voted for the ban. I don't know for sure. But based on what I know about them I can assume. They were not real keen on the idea of gay marriage. Ten years ago my cousin was 17 years old, and a lesbian, but none of us knew that.

 

Fast forward ten years later. Things have changed drastically in our nation. More people are open about being gay. More people are accepting of it. Everyone in my family knows about my cousin, and her partner, and have reacted in ways I could not have predicted... With love and acceptance.

 

Life and experience changes you. If gay marriage was put to a vote today, I guarantee most of my family would vote differently. That marks a drastic shift in their thinking and maybe they would like a chance to say "I was wrong and I want a chance to show that publicly with my vote." But they will never get to.

 

I don't think that is irrelevant.

 

I hear what you're saying, but it's not a matter of opinion.   With regard to the legal structure of this country, in this case the popular opinion is completely irrelevant.

 

The Constitution of the United States trumps public opinion.    Putting these matters to a vote is expensive, and even if 100% of the people vote against it, or even for it,  it doesn't matter. 

[JennyD]

I mean sure, you can force it through and make gay marriage legal through court cases and get the right to marry but if the world is still a bitter place full of hatred for people different from you, did you really win anything?

 

 

 

I think that is the central strategy question for anyone seeking to overturn a law they feel is unjust.  Do you work through the legal system, the political system, or both?  And then do you seek national change or go state-by-state first?    Each strategy has its advantages, but also its risks.   

 

Gay rights advocates chose to go state-by-state, pushing simultaneously for both political and legal change.  Only time will tell how robust these changes prove to be, of course, but I think that there are already important strategy lessons to be learned from the movement.  

[ChocolateReignRemix]

The very fact that it has been ten years since the last vote is what makes me want it to be voted on again. If public sentiment is shifting, shouldn't that public have a right to be heard rather than having a decision from one man handed to them?

 

Think of it this way... Ten years ago people in Michigan voted to ban gay marriage because, as you put it, "almost everyone involved in the process of making, enforcing, and interpreting our laws thought gay marriage was wrong." That is true.

 

Ten years later public sentiment seems to be shifting all over the nation. Lots of states are allowing gay marriage. Some through voting and some through lawsuits. Ten years from now it is entirely conceivable that gay marriage will be legal in every state. Some states will be able to say "we voted it in because we want it" others will have to say "it's legal here because a judge said so."

 

We will never know which kind of state of Michigan is or would be in the future because someone else decided it rather than letting the people speak. Many people of voting age right now who might vote in favor of gay marriage weren't old enough to vote back in 2004. They will never get to vote on it, to show their support. Michigan will always be the state that was forced into it. Maybe some people are ok with that but others are not.

 

Civil rights should not be dependent upon sentiment changing over time.  Our system is set up this way to provide a layer of protection from the tyranny of the majority.  African Americans in southern states should not have been expected to wait until enough southern whites agreed with them regarding their right to be treated equally.

[chiguirre]

I think the case of civil rights is very instructive. We forget what the past was like, even when we lived through it.

 

President Obama was born in 1961. To put that in historical perspective and see how fast people's opinions changed.

 

US Armed Forces were desegregated by executive order (by Truman) in 1948. It was done by executive order because it would not have passed in Congress.

Brown v. Board was decided in 1954.

MLK's "I have a dream" speech was in 1963.

LBJ signed the Voting Rights Act in 1964 and told Bill Moyers, "We have lost the South for a generation".

 

If you think back to what America was like in the 70s and 80s, would you ever have imagined we would have a black president? I actually remember having this debate in an organizational change class in the late 80s and we all though there was no way we'd see that in our lifetimes. But, changes in public opinion and tolerance can happen much quicker than I thought when I was 20. We're lucky to live in such interesting times.

[myfunnybunch]

I mean sure, you can force it through and make gay marriage legal through court cases and get the right to marry but if the world is still a bitter place full of hatred for people different from you, did you really win anything?

 

Since Jim Crow laws already came up....the world was still a bitter place full of hatred for people with a different skin color, regardless of what the Supreme Court said was or wasn't legal. Does that mean that their rights should not have been legally protected? Or that a popular vote or legal challenge should have  waited until public opinion supported equal rights for people of all skin colors? 

 

Leaving the basic civil rights of any minority class solely to the vote of the majority, without any other legal recourse, is not a good idea. I would argue that the legal protections put into place to protect the rights of any minority group help our society move forward to acceptance and release of bitterness and hatred.

 

Cat

 

 

[zoobie]

This is a wonderful explanation. Although I admit that it doesn't make me feel a whole lot better. So essentially someone IS giving the state legislature advice on these controversial proposals and the legislature just chooses to ignore it. And we give people the vote. They vote. It then gets overturned. The attorney general gets to say "I told you so." The state legislature gets to appear like they were trying to please the people or the special interest group that was paying them knowing all along that it would get struck down later.

 

So it's all a big farce.

It's not a farce. The people followed their state constitution's procedures and collected signatures to get a matter placed on the ballot. The voters voted and the matter passed by a majority vote. However, our country is not a straight up democracy, and Michigan is part of a larger republic. The people's voices were heard, which is the guarantee. The difference between a straight up democracy and a constitutional republic is that that the majority vote is not guaranteed to win all the time. Our government was designed with checks and balances so that the majority vote gets checked by (at least) the constitutional rights of the people affected by the vote.

 

There was a crazy poll out of Mississippi that showed the majority of registered voters still favored a ban on interracial marriage. Now. 60 years after the Supreme Court said these bans were unconstitutional. Should we still be waiting on the voters of Mississippi to change their minds? How long should the minority be forced to wait on an ignorant majority to change their minds for our government not to be a farce?

[Mrs Mungo]

Well, first? We aren't a democracy; we are a representative republic. This makes a difference because a lot of bills are introduced and/or voted upon by state legislatures, not the general public. The constitution is the highest law of the land. You can't make laws that are against the constitution.

 

That makes sense. But then shouldn't there be some kind of "screening process" before proposals even make it to a ballot? If something is not constitutional then why allow it to be voted on in the first place?

Excellent question. But, this would have to happen at the state level. My home state is *terrible* about introducing and passing bills (whether via popular vote or vote in the legislature) that are obviously unconstitutional. I guess they do it to make some sort of statement? Or they combine a bunch of stuff and the secret stuff they want passed is buried under the stuff they think will be popular.

 

Let's say some random group DID want to jail all homeschoolers... Why should that even be allowed on a ballot? Especially if a some judge can just say "no, that's ridiculous. You can't have that law." Wouldn't the people then say "well, then why waste everyone's time voting on it in the first place?"

Allowed by whom? That is the question. SHOULD state legislatures do the fiscally responsible thing and stop passing clearly unconstitutional laws? Yes, they should, IMO. But, there isn't an entity or process that would arrest the process before such a law gets passed.

[Mrs Mungo]

Of course not. But I would ask if it was ever put to a vote in Alabama before 2000 and if so, when? Perhaps if it had been put to a vote sooner it would have been voted out sooner?

 

If the proposal in Michigan had been just voted on last year then I would say it is overly optimistic to think the public had changed its mind. But it's been ten years. Can't we at least let them update their votes based on changing sentiment, or let new voters have a chance to be heard, before we just assume what their vote would be and give the decision to a judge instead?

Most of those kinds of laws can be changed within state legislatures without bringing it to a popular vote. If the state didn't make it a priority, how is that the fault of SCOTUS?

[Mrs Mungo]

You're right, this is the ideal way to go... A law the voters said yes to and a judicial stamp of approval to seal the deal. I guess Michigan will never get that chance. What's done is done. :(

 

Well it's late here and I am off to bed. Thank you all for the thoughtful discussion.

Michigan could have changed its law at any point within the last ten years. The law wasn't frozen in place just because there was a lawsuit. If Michigan had changed the law, then the lawsuit would have been dropped. They had the chance and didn't take it.

[Mergath]

I also want to point out that if we relied solely on a majority vote, constitution and civil rights be damned, it would be far too easy for the majority to simply take away the vote from anyone who disagrees in order to ensure that they remain the majority indefinitely.  If the courts had no power to overturn unconstitutional laws, what would stop southern states from passing laws saying that only registered Republicans can vote, or the opposite in heavily Democratic states?  It would be a mess.  So the courts having the ability to overturn a vote actually protects the right to vote.