Putting it on the ballot is an end-around the courts and Congress. This is not what the Framers intended. I oppose most kinds of government-by-referendum, especially when it is used for important civil rights issues. And gay marriage is absolutely a civil rights issues. Imagine if we had put women's suffrage on the ballot? It would never have passed. With voter turnout in off-year elections being so low, ballot initiatives are won by a majority of people who bothered to vote that day, which in no way represents the majority of the people.
http://www.thedailybeast.com/blogs-and-stories/2009-11-04/get-gay-marriage-off-the-ballot-1/ What these academic treatises ignore is the concern that Madison and others had that what they called the tyranny of the majority was legitimate. A majority, Madison predicted, often whipped up by demagogues, would oppress a helpless minority, a group so naturally small it could never hope to protect itself at the polls alone—using the government to deprive them of those aspects of life fundamental to a free society. No kidding.
The Framers set up systems to protect the minority–legislators would come from different constituencies, voters selecting representatives would have different issues before them when they voted, laws would require the executive to sign off, too. The Framers wrote down a list of rights, like freedom of assembly and religion, which could not be bargained away by any legislature. Soon after the founding, the federal courts took on the constitutional role of saying what that document required. After the Civil War, the Constitutional scheme was expanded to require equality before the law and to apply to the states specifically. The constitutions of the states modeled the state governments roughly along the lines of the federal example, including an independent judiciary to enforce the state constitution.
(snip)
That gay marriage has to run this gauntlet is not an accident. Before the Bow Out movement, most big social change claims made their way to the federal courts without this huge windup of state-by-state legislative efforts, which then alerted the opposition to the social change that was coming. More importantly, a thoroughly organized, heavily funded conservative movement is now securely ensconced on the political stage and has seen its tyrannical opportunity in the majoritarian vehicle of the referendum. The combination has pulled the American political system in a radical new direction the Founders actively opposed.
The Supreme Court has yet to rule that gay marriage is either a matter of fundamental right or simple equality. They will have a chance to do that, as the various lawsuits generated by this constitutionally repulsive procedure make their way up in the next few years. But one thing the experience with same sex marriage should make clear. Whether we like the outcome or not, the last thing the court should do, in deciding that question, is follow the election returns.
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