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Maine marriage referendum betrays small “r” republican principles

The Constitution guarantees states a “republican” form of government. Republics make law via legislatures, not by judicial fiat or the mob rule of pure democracy.

Conservatives like me, applauded California’s referenda reversing its Supreme Court’s same-sex marriage creation.

We admonished same-sex marriage supporters to exercise their free speech rights in the arena of ideas. They did so in Maine, successfully lobbying the Pine Tree State into enacting a same-sex marriage law, only to be rebuffed by a public referenda law that strips the constitutional republican bark off Maine’s pine tree.

This conservative supports traditional marriage as the exclusive version, but I also love the rule of law and the finality necessary for it to be respected. Maine’s referenda as veto invites legislatures to abdicate their accountability and prevents legal finality, much like Roe v. Wade’s judicial fiat.

[This column originally appeared as part of a "Pro & Con" feature on page A11 of the Atlanta Journal-Constitution on Sunday, November 8, 2009. If a link becomes available, it will provided here.]

Mike DeVine’s Charlotte Observer and Minority Report columns

“One man with courage makes a majority.” – Andrew Jackson

Originally published @ Examiner.com, where all verification links may be accessed.

COMMENTS

  • AceInTX

    but didn’t the Maine referendum reverse a vote by the legislature that was ordered by a court to conduct.

    If I’m not mistaken, there was a court order…I’m not sure if it was from a State or Federal circuit court…anyway…there was a court order that the state legislature had to pass a law allowing for same sex marriage…and another thing I think I heard was that that same court order required this referendum vote as well…I’ll look into that…but as I understood the issue…this vote was to correct an over reach by the courts

  • AceInTX

    It appears I was mistaken.

  • AceInTX

    The same-sex marriage law in Maine was originally supposed to have have taken effect on September 11, 2009. On September 2, 2009, however, Secretary of State Matt Dunlap announced that opponents had successfully petitioned for a referendum on the issue and the law was put on hold.[3] On November 3, 2009, the law was repealed by referendum.[4] Maine’s domestic partnership law remains in effect.

  • http://andrightlyso.com/ civil_truth

    Referenda* are a response to legislative dysfunction – a citizen “veto” of the legislature. The mitigation is that these truly are rare – and as such still represent a safety value when the legislature runs too afoul of popular opinion.

    Although referenda are not law-making, I do recognize the slippery slope if referenda become the norm and scare the legislature out of peforming its duty on controversial topics. So while I’m not thrilled with the precedent, the trade-off at this point seems acceptible.

    (And no, I’m not speaking from a results orientation, but from a balancing of evils – a runaway legislature vs. a runaway citizenry.)

    Overall, we have a breakdown in republican government because the spirit is dying and we try to cover that over with more structures that offend the original design, ending up with a monster.

    When too few of our citizenry (and legislators) understand what a republic is about, much less subscribe to the compact, we have a sickness unto death.

    * * * * * * * * * * * *

    *Note on definitions. Referendum is a popular vote on overturning a piece of legislation. Even in California, these are still quite rare.

    The distinction is vis-a-vis Initiative, which represents citizen law-making, which has been shown to carry all your fears about subverting republican principles and leading to legislative abdication (not to mention poorly constructed laws).

    So briefly, Initiatives have proven themselves to “betray” republican principles. Referenda are a two-edged sword, but so long as they remain a rarely-used procedure, they have value as safety valves to preempt a slide to civic rebellion.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    later

  • pilgrim

    This process that Maine has in place to have a referendum on major controversial things they do is more important in a state where the lame duck legislators have no fear of voter backlash. This is just another reason that I oppose strict term limits on legislators. The term limit they have should be the next election. They should always have a fear of backlash from voters whenever they do anything. That fear is not there for lame ducks.
    I would be in agreement with you were it not for the strict term limit rules in Maine.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

    I definitely would have been for the public vote. I think its a close call in any event.

  • http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
  • AceInTX