Civil rights up for referendum
dpinello at jjay.cuny.edu
dpinello at jjay.cuny.edu
Mon Sep 12 20:17:10 PDT 2005
I do think that you are indeed missing something, in that you compare
apples with oranges.
Consider the constituencies that your examples touch. The 1974
California right to privacy vote most directly concerned women, coming
as it did the year after Roe. Restrictions on private property rights
most encumber people with substantial private property, i.e., the
wealthy. Likewise for campaign finance measures. The last affected
group in your paragraph is gun owners.
Each of these is more numerous in the American population than gay
people. During the 2000 elections, national exit polls indicated that
four percent of voters self-identified as gay or lesbian. That figure
reached six percent in the 2000 California presidential primary. More
recent data indicate the same amounts.
Moreover, none of your groups face the kind of public hostility
historically leveled at gay people in this country. The classic
analysis here is Kenneth Sherrill, 1996, "The Political Power of
Lesbians, Gays, and Bisexuals" (PS: Political Science and Politics
"In addition to being outnumbered, gay people are despised. In
electoral politics, being liked matters. Groups toward which people
have warm and close feelings are likely to be wooed in election
campaigns and are likely to be part of winning coalitions. The
feelings of the American electorate toward gay people are cold and
"The American National Election Study routinely asks respondents to
place their feelings toward various groups on a 'feeling
thermometer.' The warmest possible feelings result in a placement of
100; a group receiving the coldest possible feelings would be placed
at zero. Feelings that are neither warm nor cold are placed at fifty
degrees. Affect -- the feeling of warmth or coldness, of closeness or
of distance -- is at the root of affection.
"The NES data starkly reveal that lesbians and gay men are the objects
of overwhelming cold feelings on the part of the American people.
Only illegal aliens, who are neither citizens nor voters, rival
lesbians and gay men in this regard. . . . No other group of
Americans is the object of such sustained, extreme, and intense
distaste. Such hostility does not face any other group in the
The mean "feeling thermometer" scores for selected groups of people
from the 2004 NES data are:
women -- 83
working class people -- 82
whites -- 73
poor people -- 73
men -- 73
blacks -- 72
big business -- 69
Catholics -- 69
Hispanics -- 68
Jews -- 68
rich people -- 60
labor unions -- 58
fundamentalists -- 58
people on welfare -- 56
business people -- 56
Muslims -- 54
gays and lesbians -- 49
illegal immigrants -- 41
A second measure of the political powerlessness of gay people is that
fewer than one-tenth of one percent of all elected officials in the
country are openly lesbian or gay, despite being at least four to six
percent of the voting population. No other group is reflected in such
a disproportionately small piece of the American political universe.
In addition, hate crimes against gays remain disproportionately high
and disproportionately violent.
Next, consider the relative deprivations imposed by the rights
denials. Gay people's lack of access to the institution of civil
marriage can have devastating consequences. The clearest example is
binational relationships. When American citizens marry foreign
nationals, U.S. immigration policy welcomes the foreign spouses to
live in this country with their partners. That's not the case with
the most liberal civil union and domestic partnership arrangements.
The foreign same-sex partners of American citizens face the constant
threat of deportation, thereby effectively destroying relationships.
A second poignant example comes from my book's Massachusetts chapter.
Three sources confirmed this narrative. Arline Isaacson of the
Massachusetts Gay and Lesbian Political Caucus provided details:
"This is a story about two elderly lesbians, one a retired
schoolteacher, whom I'll call Susan, and the other a retired nurse,
whom I'll call Mary. Susan and Mary lived together forever.
"When Mary, the nurse, was actively nursing, she focused a lot of her
attention and energy on issues around homelessness and senior
citizens. As a result of her hard work, a homeless shelter for senior
citizens was first established in Massachusetts.
"After retirement, Mary fell and injured her hip, a common accident
with seniors. Susan, the retired schoolteacher, was afraid that Mary
would have to be put into a nursing home, because Susan, herself
frail, might not be able to give Mary the full care she needed.
"In Massachusetts -- and I believe this is true in other states as
well -- there's something called the Medicaid Empoverishment Spousal
Waiver. That means that if a legally recognized spouse is put into a
nursing home and the other spouse can't afford to pay for the
treatment because of inadequate resources, the state will pay for it
under Medicaid. But the state says, 'If we're paying to maintain you
in a nursing home, we're taking your assets. But wait a minute.
You're a married couple and have lived in a house that you've shared
together for many years. We'll let the healthy spouse stay in the
house and keep a few thousand dollars of joint assets. Other than
that, we're taking everything.' That's if you're straight.
"If you're a gay or lesbian couple, the spousal waiver doesn't apply.
Well, Mary, the retired nurse, owned the home that she and Susan lived
in, having bought it decades earlier, before the two women met. Title
was in Mary's name only. They never bothered to put Susan's name on
the deed. They didn't think they needed to.
"So if Mary had to go into a nursing home, the state would come along
and say, 'We're paying the Medicaid for Mary's nursing home. You know
what, Susan? You're not Mary’s legal spouse. So we're taking all of
Mary's assets, including her house, and you're evicted from it.'
Susan, the retired schoolteacher, would be left only with a minuscule
monthly pension to live on.
"Thus, the painful irony was that Susan could end up in the homeless
shelter for seniors that Mary had set up."
With respect, I don't see the disadvantages experienced by the
property owners and gun owners of your examples as at all comparable.
They don't face the total loss of their primary personal relationships
or of their primary long-term residences.
In short, gay people are vastly outnumbered, face the highest levels
of popular animosity, and experience the greatest deprivations from
Professor Volokh, do you still think that's a reasonable political
----- Original Message -----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Date: Monday, September 12, 2005 5:21 pm
Subject: Civil rights up for referendum
> I heard (second hand) complaints about putting civil rights up
> to popular referendum is being made in the same-sex marriage
> debate; but
> I wonder whether the complaints really make sense.
> In most states, all state constitutional provisions, including
> the ones involving civil rights, are put up for popular vote. Unless
> I'm mistaken, the California right to privacy, for instance, was
> enactedin 1974 by popular vote. Initiatives that restrict private
> propertyrights are routinely enacted by popular vote. Campaign
> financemeasures, which certainly bear on free speech rights (even
> if they
> ultimately prove to be constitutionally permissible restrictions on
> those rights) are done by popular vote. Right to bear arms
> are routinely enacted, and sometimes modified in ways that limit
> by popular vote.
> We do indeed, as the last paragraph suggests, have a mixed
> system of government, in which a wide range of laws -- including
> that people see as civil rights measures -- are sometimes enacted
> sometimes modified or repealed) by popular vote, by legislative
> vote, or
> by judicial action. And because different people have different
> about what truly constitute civil rights (for instance, some
> people see
> the right to bear arms as a deeply important civil right, while
> see it as a danger to peace and safety), it seems to me quite
> reasonablethat the people would want to express their views on the
> subject. Or am
> I missing something here?
More information about the Conlawprof