THE BLOG
05/11/2009 05:12 am ET Updated May 25, 2011

Gay 'Justice' in a Perfect World?

Gay-rights advocates -- including myself -- cheered this week when Vermont legalized gay marriage. But it's not necessarily that the state gave same-sex nuptials the green light -- that's happened three times before, including last week in Iowa. The Vermont vote isn't exciting in and of itself; it's the way the vote came to be: lawmakers overrode Gov. Jim Douglas's gay-marriage veto to pass the law. For those of you keeping record, that's the first time legislators have themselves granted gay marriage. In the other states where such rights are granted -- Massachusetts, Connecticut and Iowa -- judges handed down the ruling.

While I should be jumping for joy that legislators took the reins on this one, I'm a bit wary of how much it really matters. Consider, for example, a statement made by Vermont Rep. Robert South, who reluctantly voted in favor of gay marriage: "[The vote] was very difficult because the marriage equality bill, as far as I'm concerned, has split the state. I see how close my numbers are for and against same-sex marriage, and it's divided my constituents, and that's what upsets me."

Representative South told The New York Times that his decision came down to the wire and he only voted for gay marriage after 228 of his constituents encouraged him to do so, while only 198 wanted him to say "nay." But that's how representative democracy works, right? That's the way we Americans play the political game and I'm proud to live in a nation where the people are heard.

As Newt Gingrich said in reaction to the Vermont vote, "The people of Vermont have every right to elect the legislators they want and if they disagree with this decision they have every right to replace them, and so it is the people's branch overriding the governor, who's elected, and it's not an isolated imposition by the elite." Gingrich's use of "elite," of course, refers to so-called "activist judges," like those in Iowa, who ruled that restricting marriage to one man, one woman counts as unconstitutional. Those judges, argues Mr. Gingrich, expressed "judicial arrogance" in their ruling. Social conservatives and Republicans such as Gingrich believe that, because lawmakers are accountable to the people, the lawmakers should make such decisions. It's only then, they say, that a law gains democratic authority.

Now, here's where I'm torn: While certainly people's voices should be heard via their elected officials, do those same officials necessarily know the law? How many times have we heard of corrupt politicians breaking the law? A lot.

In his remarks on Vermont, Gingrich griped that the Iowa justices amount to nothing more than "seven lawyers who have decided, on their own, to fundamentally change Iowa." I don't know about you, but it seems to me that justices -- who are (hopefully) more than simple "lawyers" -- have a better grasp on constitutional law than the average elected official. That's not to say lawmakers are ignorant of the law, because that's not necessarily true, but lawmakers must answer to the public, lest they lose the next election. I understand the world's not a perfect place and justices are often appointed according to political leanings, but hopefully they answer only to the law. [And, actually, the justices in California who approved of gay marriage were primarily appointed by Republicans. Those who voted "yes" on Proposition 8 last November overturned that ruling. Most of the Iowa justices, for the record, were appointed by Democratic governors.]

No, justices may not always read the law correctly, but they're meant to be more objective than someone who has to worry about campaign funds. What if an extra thirty-one people had called Rep. South and asked him to vote against gay marriage? Had South gone the other way, so too would the vote, for it was decided by one vote.

Complicating matters is the fact that many Americans -- dare I say the majority -- don't understand the law from an objective point of view. We're emotional creatures and therefore read legalese from completely subjective points of view.

Regardless of the way Vermont's decision came about, the move changes the entire landscape of the gay-rights debate. The National Organization for Marriage, which opposed gay marriage, has now launched a new initiative warning other states that "the storm is coming" and citizens need to be on the lookout for gay marriage. And, of course, they should let their lawmakers know where they stand.

While the apocalyptic language remains the same as commercials past, I suppose I find some comfort in the fact that they can no longer rail against "activist judges." I also hope that the Vermont decision presses people to reconsider an old debate: Which group has more democratic authority -- those who write the laws or those who interpret them? And do either have more "moral" sway?

I do know, however, that Marriage Equality Executive Director Evan Wolfson's right on the money when he asserts, "Contrary to the claims made by the opponents of equality, it's not just judges, it's not just the coasts and it's not just going away." How this plays out, however, depends as much on lawmakers as it does judges. And, most importantly, the American people. Only when our fellow citizens realize that restrictions on people's rights hinder the American dream will our democracy move toward a more perfect union.