Christine M. Flowers: Legalize same-sex marriages in New Jersey? not unless 'we the people' say so

Posted: February 03, 2012

THREE of the most beautiful words in the English language are "We the people."

New Jersey Gov. Chris Christie knows that. Last week, he promised to veto any bill legalizing gay marriage. Responding to the somewhat hysterical criticism that he usually gets, like a Democratic assemblyman's comment comparing the governor to his segregationist brethren of the Jim Crow South, Christie said that some Democrats in Trenton were using the issue as a "political football." With all due respect to the governor, that's hardly a revelation. Legislators always follow their poll ratings, which they also like to call "their conscience."

But Christie reiterated what the Founders actually meant when they penned the preamble to the Constitution:

"This issue is too big and too consequential not to trust the people who will be governed ultimately by any change in law or maintenance of the current law . . . so I say today, let the people decide."

You'd have thought he'd called for mob rule, the way some critics reacted. Most notable was Senate President Stephen Sweeney, who voted against a similar measure in 2010 but has since seen the light and now warns: "Civil rights will not be placed on the ballot."

That's what usually happens in these cases. You tell someone he can't get married and he starts conjuring up images of segregated lunch counters, Alabama Gov. George Wallace and Bull Connor of Birmingham with his fire hose. It makes for good copy, but it's not conducive to legitimate debate.

That's why it's disappointing when a legitimate civil-rights icon like Georgia Rep. John Lewis draws strained analogies between the struggle for racial equality and the crusade for same-sex marriage as he did this week, thereby giving historical legitimacy to marriage equality. (He was responding to Christie's inartful comments on public referendums and the Freedom Riders, for which he later apologized.) In 2003, when the Supreme Court invalidated laws against sodomy, Justice Antonin Scalia wrote the following in dissent:

"Today's opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Obviously, Justice Nino is not going to be asked to be grand marshal at San Francisco's next Gay Rights Parade. But the point of his dissent was that the court was using, or, rather, misusing its power to change society without bothering to find sufficient grounding in the law. It was doing exactly what was done in Roe v. Wade: making specious legal arguments to achieve a socially engineered result. Scalia wasn't actually saying that sodomy should be illegal. He was saying that if society as a whole wanted to criminalize it, society should have that opportunity.

But, activists say, marriage is a fundamental right. The Supreme Court said so in Loving v. Virginia, in which it struck down laws against interracial marriage: "The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

The whole point of Loving, set against the background of insidious Jim Crow, was that society had no right to legalize discrimination on the basis of race. It was not a statement that marriage is so fundamental that there should be no restrictions. Loving was a warning that racial bigotry would not be accepted by "we the people."

So, why doesn't that also apply to homophobia? Because, as the New York Court of Appeals observed in Hernandez v. Robles:

"The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted."

The New York legislature eventually legalized same-sex marriage. But the court's reasoning still holds. Tradition is not necessarily bigotry. And society has a stake in determining who deserves its benefits.

Of course, if you twist the argument into something like "Why shouldn't people who love each other have the right to marry whomever they want?" you make a sympathetic but naive appeal to our basic sense of fairness. Which leads to the question: Then why not allow polygamy? Because society disapproved, as Brigham Young found out.

So, Christie is right that a referendum is the fairest way to "overturn hundreds of years of societal and religious tradition." Times have changed, and maybe New Jersey is ready for gay marriage.

It's also possible that "we the people" will reject it.

But that's the price of democracy.

Christine M. Flowers is a lawyer. Email

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