Andrew Sullivan, in describing Gov. Christie’s veto of gay marriage in NJ, explains how the gay rights movement had “the goalposts moved” on them. First, gay rights activists were told that “the courts had nothing whatever to do with ensuring minority rights, if that minority were gay.” The key audience to reach was, in fact, the State Legislatures. He writes,
When we actually began to win in state legislatures, such as California (twice!), or New Hampshire, or now Maryland and New Jersey and Washington State, that process became suddenly unacceptable – and undemocratic! – as well. Even on an issue many hold to be a core civil right, we were told the courts were irrelevant and now that the legislatures were irrelevant. This was particularly odd coming from conservatives who at one point in time were strong believers in restraints on majority tyranny. But this is what a legislative debate can do that no referendum can, and it’s why the founders established a republic not a pure democracy…
Sullivan thinks public referendums are fine — “let’s all we can to win them,” he says –
But the way in which a tiny 2- 3 percent minority seeking basic civil equality has been forced now to be subject to state referendums, even after winning legislative victories, strikes me as revealing. It’s basically an attack on representative government, a resort to the forms of decision-making which maximize the potential for anonymous bigotry and minimize the importance of representative government, a core achievement of Anglo-American democracy, that can help enhance reason of the accountable against the sometimes raw prejudice of the majority.
Christie is a man whose candor I admire in many ways. But this was an act of cowardice and unfairness and a misguided disregard for representative democracy. How many other duly enacted laws must now be sent to the referendum process for final judgment. Why have a legislature at all? And this from the party that claims to defend the Constitution.
The same argument could be applied to charter schools, which serve a minority of students who also typically happen to be minorities. (See earlier coverage here and here.) The NJ State Legislature has approved the charter concept and lifted the cap. The DOE is making good progress towards increased scrutiny and accountability, much in line with traditional public schools. But to then require that a minority of parents and children seeking basic educational equality could now be forced to be subject to local referenda is, as Sullivan says, “an attack on representative government, a resort to the forms of decision-making which maximize the potential for anonymous bigotry and minimize the importance of representative government.”
Indeed, why bother having Legislatures?
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