Upholding Democracy Against Judges

This November, Americans will of course select a new president. But some of the most pressing issues of our time will not be decided in that race. Rather, they will be decided at the state level with ballot initiatives.

These public questions address a wide range of issues, including gambling and environmental issues.  The most critical public questions are affirmative action and homosexual marriage.  Although one should have concerns about the widespread use of direct democracy, these measures are really the only way to wrest control over policy issues from the ceaseless usurpations of courts and return them to the people.

Three states – Florida, Arizona, and California – have proposals to amend their state constitutions to define marriage as exclusively between one man and one woman.  The Proposition 20 California initiative is especially important because it represents a direct attempt to undo the invention of same-sex marriage by the California Supreme Court this past May.  A Proposition 20 confrontation of this sort was impossible in Massachusetts (the only other state to legalize same-sex marriage by judicial decree) because of a more complicated amendment process.  Florida and Arizona are taking preemptive step to frustrate any future judicial inclination to redefine marriage.  Once adopted, these three measures will join similar amendments adopted in twenty-seven other states.

Marriage of course was already defined statutorily in all 50 states as a union of one man and one woman.  The problem is that courts have assumed the leadership of the homosexual revolution in the area of marriage.  Elected officials are terrified of pushing back at the courts, and the judicial overreaching is thus meekly ratified.  This is no way to address the solemn question of who may and may not be married. 

Americans overwhelmingly seek racial neutrality in government contracts, hiring, and university admissions.  Unfortunately, bureaucrats are able to keep a vast network of racial preferences in place at both the state and federal level.  Elected officials who may oppose this unfair use of race rarely raise any concerns.  In Arizona, Colorado and Nebraska have or will have ballot questions that will comprehensively ban the use of race in government.  These same measures passed easily, despite fierce and well-funded opposition, in Washington, California, and, most recently, Michigan. 

John McCain has endorsed the proposed ban (a reversal of his earlier position), and Barack Obama flatly opposes them.  (Indeed, he actively campaigned against the successful Michigan initiative.)  "I think in the past he’d been opposed to these Ward Connerly initiatives as divisive," Mr. Obama has said of McCain’s position.  "And I think he’s right.  These are not designed to solve a big problem, but they’re all t oo often designed to drive a wedge between people." 

Despite all his chatter about moving beyond racial divisions, Mr. Obama’s endorsement of affirmative action discloses that he is just another quota-loving politician, precisely the sort who has kept racial preferences in place despite their vast unpopularity and unconstitutionality at all levels of government.  These initiatives are in fact designed to solve a big problem – namely, government classifications based on race.  And in the states where they have been adopted, they have not driven a wedge between people.  They have simply compelled those governments to make decisions without taking race into account. 

All proposals to ban affirmative action are invariably characterized as "divisive"; however, it is undeniable that hiring for a government job based on race, awarding a government contract based on race, or admitting students to state universities based on race are among the most divisive practices in the country today.  Eliminating racial considerations is the only way to alleviate racial divisiveness.

Ballot questions involve a kind of plebiscitary government that the founders of this republic would have viewed with various degrees of hostility.   Their great fear was mob rule, and such fear was and is justified.  Indeed, that voters need to resort to this method of reform demonstrates a basic failure of our republican form of government.  In the case of marriage, it is an out-of-control judicial branch that nullifies legislative determinations.  With affirmative action, it is feckless elected representatives who are fearful of becoming entangled in racial politics.

But this is where we are, and the need to use these less-than-ideal means to maintain or restore basic understandings – about the proper nature of marriage and the necessity of racial neutrality to ensure equality before the law – is inevitable.    

Gregory J. Sullivan (Gregoryjsull@aol.com ) is a lawyer who resides in Bucks County.