The trouble with democracy

The debate about who should decide the legal status of same-sex marriage, now unfolding in New Jersey and nationwide, is as old as the Constitution. Should the people decide in a referendum, as Gov. Christie maintains? Or should the Legislature or the courts settle it?

While New Jersey ponders that question, Washington's state Legislature is poised to pass a bill allowing same-sex marriage. For anyone keeping score, that will bring the number of states that have permitted gay marriage by legislation or court order to seven. Meanwhile, the legislatures of 12 states have prohibited same-sex marriage by statute.

Voters in 29 states have approved ballot measures enshrining same-sex marriage bans in their constitutions; a federal appeals court struck down California's voter-approved ban on Tuesday. Nowhere have voters approved same-sex marriage by referendum.

None of that resolves the question of whose decision this should be - especially considering that in highly charged matters like this, people are likely to favor the method most likely to produce the result they prefer.

Whether that is Christie's thinking is anyone's guess. Public opinion in New Jersey, as elsewhere in the country, is closely divided. As recently as last summer, a statewide poll was interpreted by some as reflecting majority support for gay marriage and by others as showing the opposite.

In any case, Christie frames the issue as one of democratic principle: Controversial policies with such far-reaching social consequences should be determined by voters. But is that true? Over the years, that question has spawned a deeply American debate.

I can't tell you what the Founding Fathers would have thought about gay marriage; I'm sure they never thought about it. But they thought quite a bit about who should make weighty decisions. And finding sympathy for Christie's position among the men who gathered in Philadelphia in 1787 would have been an uphill climb.

The Founding Fathers were famously conflicted about democracy. For one thing, they worried that popular passions could lead to bad public policy - to laws that subvert rather than serve the common good. For another, they thought that people swept up in the excitement of a moment - "transient majorities," they called them - would threaten the rights of minorities.

That's why James Madison said the Constitution was designed to "refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country."

We can argue about whether Congress or any other "chosen body" is rising to that challenge today. But there's no denying that although the founders' Constitution envisions a government based on majority rule, it's also designed to contain public opinion and democracy by placing decision-making in the hands of those with cooler heads and more impartial views.

The Founding Fathers were realists as well as rationalists, and they knew well that most legislatures are not dispassionate. So when elected officials get carried away, Alexander Hamilton said, we must rely on independent judges "as an essential safeguard against the effects of occasional ill humors in the society."

While the same-sex marriage debate is clearly a lightning rod for ill humor, none of this gets us any closer to determining whether New Jersey should allow same-sex marriage by whatever means. It does suggest, however, that if Gov. Christie justifies a promised veto of marriage-equality legislation as "democratic," he won't be using the term the way the founders understood it. And I'm sure the governor venerates the Founding Fathers as much as the next guy.

The founders gave us a Constitution that's open to the future, and the country has become more democratic over time. But one of their guiding and unchangeable principles was that minority rights cannot be held hostage to majority will.