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By: Daylin Leach

When you follow politics closely, every election night comes with its exhilarating wins and heartbreaking losses. Some years there are more of one than the other, but every year is, to some extent, a mixed bag. This year, the toughest loss for me to watch was the decision by the voters of Maine to (albeit narrowly) overturn by referendum the legislature’s legalization of same-sex marriage.

As a strong supporter of same sex marriage, I was naturally disappointed with the outcome of the election. As I watched the final results came in, however I found myself feeling disquiet beyond that usually elicited by being on the short end of a vote. Something seemed fundamentally wrong to me about the process itself.

At first I thought that my unease was caused by my general antipathy towards government by referendum. I believe we should elect people whose judgment we trust and assign to them the full-time task of studying issues, going to hearings, meeting with stakeholders, participating in debates and coming to the best solution. This seems to me far preferable to distilling complex issues down to one line on a ballot, to be decided in a moment, with no study, by people who often came to vote for things completely unrelated to that issue.

Referenda also makes one of the most important legislative functions, compromise, impossible. If I see a ballot initiative asking if I want to spend an additional $10 million on education, I may think that’s too high. But I could support $5 million. In the legislative process, that lower, more reasonable figure might actually be the final product. In a referendum, it’s all or nothing, guaranteeing extreme results that up to 49% of the population never buy into.

Finally, voters don’t have to square the circle. For example, in states with referendum provisions, voters routinely vote to both cut their taxes and increase spending on services they like on the same day. Unlike the legislature, voters don’t have to make it all add up, which often leads to budgetary disaster.

Yet, as I thought it through, I found my concerns went deeper. There is something profoundly wrong about putting the basic human rights of a minority up to a vote of the majority. Rights are rights, whether or not the majority agrees with them. In fact, their persistence in the face of majority disapproval is what makes them rights in the first place. And while there may be an argument (a weak one, as I’ve explained) for voting on a given tax, or whether to build a highway, individual rights belong to the individual, not 51% of the community.

For instance, should we put what God you can pray to up to a vote? How about whether or not a person has the right to advocate a certain position on an issue, or whether or not they have a right to remain silent if arrested? Maybe we could vote on what books can be read, or whether married couples can use contraception? Obviously, most of us would recoil from such suggestions.

We can examine recent history to see how such votes might go: fifty years ago, if we had put desegregating public schools up to a vote in the South – or much of the North for that matter – would it have passed? How about allowing African Americans to drink out of Whites-Only water-fountains? Even in the context of marriage, at one time, a vote on whether one could marry outside their race would have lost overwhelmingly in much of the country. In some places, it might still lose today.

It seems to me to be extremely problematic and frankly, a little icky to have majorities decide whether a minority is entitled to their human rights. It would, in concept, be like having white people vote on whether black people could sit in the front of the bus, or having Christians vote on whether Muslims can pray publicly. I’d like to think that – in this day and age – those votes would go well. Even so, it still wouldn’t be the right thing to do.

It is estimated that 3% of Mainers are gay. Therefore, 97% of the people, whose own lives are utterly unaffected by the status of same-sex marriage, got to give thumbs up or thumbs down on someone else’s marriage. Marriage was called by the United States Supreme Court “fundamental to our very existence.” Yet gay people are denied the right to marry because a slim majority of straight people don’t feel like giving it to them. That process, more than the result, should make all of us, and our spouses, lose some sleep tonight.