Wednesday, November 6, 2013

Hitchcock: Is It Right to Vote on LGBT Rights?

Editor's Note: The following was submitted to the Idaho State Journal by former professor Leonard Hitchcock. It appears here with his permission.

On one side are those who think that the scheduled referendum on Pocatello’s LGBT ordinance is not only appropriate, but desirable; on the other, those who are believe that, to quote a City Council member, “Human rights should never come to a referendum.” 
The former will argue that the referendum is a fundamental right of the electorate and provides a necessary check upon the power of legislative bodies, bodies which may, intentionally or unintentionally, betray the trust of the citizenry and pass laws contrary to the general will.  Referenda are especially appropriate when a piece of legislation has involved heated controversy, and opposition to it has been not just conspicuous but widespread. 
This argument has considerable plausibility.  The referendum, along with its usual partners, initiative and recall, has long been regarded as a valuable instrument of “direct democracy,” even though the Founding Fathers, it must be noted, made no provision for it in the federal Constitution.  It was in the early years of the 20th century that the Progressive Movement championed the virtues of these instruments.  Many states in the western half of the country adopted them, largely in order to combat state legislatures that had been corrupted by special business interests.
But a strong case may also be made by those who deplore the success of the campaign to put the LGBT ordinance on the May ballot.  To begin with, the use of referendum is in itself of questionable value.  The Founding Fathers had, no doubt, a pronounced fear of the corrupting influence of power upon politicians, but they also feared placing too much power directly in the hands of the people.  They feared that the public would behave irresponsibly; that it would be easily influenced by demagogues and swayed by special interests.  They therefore created, as we all know, a representative, not a direct, democracy, and clearly intended representatives to exercise independent judgment. They also rejected direct election of the president, and believed in limited suffrage. They didn’t support the principle of “one man; one vote;”  they created a Senate in which each state had two representatives, no matter what its population, thus insuring that the vote of a resident of Rhode Island was far weightier than that of a resident of California.
The Founding Fathers were particularly disturbed by a tendency of the body politic that had been all too evident from colonial times up through the confederacy: the predilection of majorities to oppress minorities.  Democracies give to the majority the same sort of power that older systems gave to the king.  De Tocqueville, traveling in America in 1831, saw the consequences of this. He called it the “tyranny of the majority” and found it to be a besetting evil in state governments.
He also noted, however, that the Federal Constitution had made a strong effort to combat that evil.  Because the Founding Fathers mistrusted unchecked power whether it was wielded by the executive branch or a legislative majority, they created a list of legislative actions that congress was forbidden to take, however great the number of supporters of those actions might be, either in congress, or, by implication, in the general public.  That list of forbidden actions, contained in the Bill of Rights, became the first ten amendments to the Constitution.  It’s often said that those amendments established “inalienable rights,” but we should also remember that the threats to those rights usually come from those in the majority.
And it is the majority, in the referendum on Pocatello’s LGBT ordinance, that will determine whether that ordinance is nullified or sustained.  For those who believe that what is at stake is the right of those belonging to the LGBT community to be free from discrimination, and who further believe that that right has been recognized in U.S. Supreme Court decisions, in the policy of the U.S. Armed Services, and the legislative action of twenty-one states, it is singularly inappropriate to let the majority decide the issue.  When a right has been established, the opinion of the majority is irrelevant.
But those who favor the referendum could respond that discrimination against LGBT individuals in employment, housing and public accommodations has not, in fact, been recognized as a violation of their rights by definitive court decisions or legislation at the federal level, and the State of Idaho has refused to add sexual preference and identity as a protected right in the Idaho Human Rights Act.  Clearly there are Pocatello citizens who believe that this issue has not been settled and that discrimination against gays is justifiable.  They wish to be heard. 
In passing the ordinance, the city Council sought to join several other Idaho cities in taking a progressive position on gay rights.  Its decision may well have been an enlightened one, and there’s little doubt that majorities are often wrong about human rights, but even the Bill of Rights wasn’t handed down from God: it had to be ratified by the vote of majorities in state legislatures.  The referendum is therefore appropriate, I believe, though some of us will nurse the hope that by May a national consensus confirming gay rights will have been reached, and the opinion of Pocatello’s majority, whatever it is, will turn out to be of no consequence.
As of this writing, the U.S. Senate is considering a bill to ban discrimination against gays by employers.

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