Trenton's Referendum Mania

Cross-posted at PolitickerNJ

It’s referendum mania in Trenton!  The governor and Republican legislators want to put same sex marriage to a public vote.  Democratic legislators want to put charter school approval to a public vote.

What do they have in common?  In each case, the sponsors are opposed to the policy in question.  Many believe that they are using the referendum option as a “democratic” smokescreen for a policy they don’t want enacted.

Not only is this bald-faced politics, but it’s a slippery slope.  The public lacks both access to information and the ability to deliberate on these types of issues – issues which our founders specifically said should be left to an informed, deliberative system of representative government.

The New Jersey Supreme Court declared that the state must provide and protect identical legal rights for civilly joined same sex couples as it does for married heterosexual couples. Same sex marriage advocates argue this hasn’t happened in practice under the state’s civil union law.  They have provided witnesses who give compelling stories of instances when their rights were denied.  Opponents have argued these are isolated instances that can be corrected with improvements to existing law.

The researcher in me says there is a pretty easy way to determine this.  Take a random sample of same sex civil union couples and a matched sample of heterosexual couples married at the same time and survey them.  If the former group has had significantly more problems with health insurance, parental rights, having next of kin rights honored, etc. – then the argument that civil unions don’t meet the Court’s mandate would be strong.  If not, perhaps the incidents are isolated and modifications to the current bill are all that is needed.  This is something that should be examined honestly by our three governmental branches.

Polls, including a recent one by Monmouth University/NJ Press Media, show that public support for same sex marriage has risen in the past couple of years.  It appears that the debate – particularly the argument that civil unions are not providing equal rights – may be resonating with more New Jerseyans.  Or perhaps, residents are simply getting tired of this debate and want to move in a definitive direction so government will start concentrating on other pressing issues.  Either way, the state of public opinion is absolutely no justification for putting this issue on the ballot.

The bottom line is you don’t put civil rights to a public vote.  The founders were very clear on this.  That is why they created a Republic with (supposedly) deliberative institutions of elected representatives.  Our system was specifically set up to protect the interests of groups who may be in a numerical minority.  The folks in Trenton may do well by brushing up on James Madison’s argument to that effect in the Federalist Papers (#10).

Specifically he wrote that the purpose of our system of government is “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens … [so] that the public voice, pronounced by the representatives of the People, will be more consonant to the public good, than if pronounced by the people themselves.”

Now, I do agree that limited initiative and referendum, like the type championed by the late Congressman Bob Franks, makes a lot of sense.  Borrowing and bonding – that should always be approved by those who are responsible to pay the debt.  Certain other macro-fiscal issues are also appropriate for a public vote.  And anything that requires an outright change to the state’s Constitution requires voter approval.

But putting anything beyond that on the ballot is an invitation to demagoguery.  And once that door is open, it will be near impossible to close.