Referenda on the Rights(?) of Others

Written by Henry L. Chambers, Jr. on June 17th, 2009

In a ruling a few days ago, election officials in Washington, D.C. decided that a referendum on whether the District of Columbia could recognize the marriages of same-sex couples who were legally married in another jurisdiction could not occur.  The officials determined that allowing a referendum on the issue would itself authorize discrimination that the D.C. human rights law forbids.  Not tmpphpxy9y7i1.jpgsurprisingly, the referendum’s backers were not happy.  This issue is a variation on the question of whether a majority can vote to take away the rights of a minority.  The answer to that question is, obviously, no.  However, the answer begs the question of whether the subject of the referendum really is a right of the minority. Whether having one’s valid marriage from one state validated in another state is a right protected by a D.C. statute is the crux of the issue.  Though the supporters of the referendum argue that the determination of that issue ought to go to the voters, there is little reason to agree.  The majoritarian impulse to use 51% (or more) support for an issue to get that issue resolved in one’s favor is strong, but is sometimes wrong.  Majoritarian impulses can be used to deal with a great many important issues.  However, they cannot be used to deal with all of them.  The initial determination of whether a right exists or can be abolished by referendum is a task best left to that most non-majoritarian of bodies – the courts.  Given that the supporters of the referendum have vowed court action, that is just where the issue will be resolved.


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