A Civics Lesson for Maryland's Leaders

As a professor of political science I admit that I tend to view political issues through a slightly different lens than many voters and certainly many elected leaders. Few things frustrate me more than when people fundamentally fail to understand the difference between a direct democracy and a representative republic. America is of course the latter, yet is all too often treated by voters and even representatives as if it is the former.

I've thought of this important distinction quite a lot lately as Maryland's legislature has been considering a bill that would legalize same sex marriage. Similar bills had been introduced in the past, but they never survived Maryland's Senate - considered by many to be the more conservative half of the Maryland Assembly. When the legislation was introduced this year, political observers in the state again viewed the Senate as the challenge and the House of Delegates as more friendly territory. Then the conventional wisdom was upended. The state Senate passed the marriage equality legislation by a vote of 25-21 after little more than 2 weeks of wrangling. Shortly after passing in the Senate, it became clear that the House of Delegates was not nearly so friendly.

What was most surprising was that the bill was being derailed in the House not by vocal opponents of the measure, but rather by delegates who had openly supported, even co-sponsored the measure. Dels. Tiffany Alston and Jill Carter prevented a vote on the bill in the Judiciary committee because they were having second thoughts about a bill each co-sponsored. In the end, the bill was approved by the committee - Carter voted for it, but Alston voted against it complaining "This has not been the deliberative process that we normally engage in in this committee." Perhaps the committee could have deliberated more had she not staged a walk-out when the bill was up for consideration.

Another bill sponsor, Del. Sam Arora, suddenly announced that he was opposed to the bill he sponsored and would vote against it on the floor. Two days later he announced that he once again supported the bill that he had co-sponsored.

All of this intrigue is likely the result of a simple gamble taken by many delegates. They assumed that same sex marriage would die in the Senate, as always, and they would never be called upon to cast a vote. Then the unimaginable happened, the moment so many representatives dread - they had to cast a contentious vote. They sponsored the bill believing that it would win them favor among some constituent groups while never really worrying about a backlash from opponents for a vote that would never come.

When it became clear that a vote would come, all of those opponents started reaching out to their delegates and voicing their concern. Many supporters and even co-sponsors simply were not ready for the pressure and they wavered, buckled, flip-flopped and altogether embarrassed themselves.

Especially frustrating has been the comments and justifications offered by many of these delegates. Del. Arora, after changing his mind about changing his mind stated that he would support the bill in committee and "On the floor, I will vote to send the bill to the governor so that Marylanders can ultimately decide this issue at the polls... I think that is appropriate." Arora was speaking to the expected petition for a referendum - Maryland, voters may challenge recently enacted legislation via a ballot initiative.

Maryland Governor Martin O'Malley, who once supported having the legislature resolve this issue and indicated that he would sign whatever compromise legislation the legislature delivered to his desk, has been largely silent on this issue. O'Malley, as chairman of the Democratic Governors Association, has been happy to engage in high profile battles with Republican governors like Chris Christie or Scott Walker over issues of union rights, public pensions, and health reform but has chosen to stand on the sidelines as his own state debates the preeminent civil rights issue of the day. When O'Malley did enter the fray his contribution was that he wished the House of Delegates would come together and compromise on a bill, that he would sign legislation legalizing gay marriage, but "We should let the people decide." Again referring to the expected ballot initiative.

After voting against the bill that she co-sponsored, Del. Alston said "I think people make the best decisions they can with the options that are available to them... I don't think anyone should hold any of our decisions against us, because this is a very difficult decision." 

Arora, O'Malley, and Alston need to better understand that important distinction between direct democracy and representative republic. In Federalist 10 James Madison spoke of direct democracies as "spectacles of turbulence and contention." In a representative republic "the delegation of the government... to a small number of citizens elected by the rest..." These representatives, will "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, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."

Madison is telling us that in a representative republic we entrust our elected leaders to use their judgment when making decisions. It is not for them to place their fingers in the wind and vacillate with the ebb and flow of public opinion. It is for them to act based on their conception of what is best for community and country (or state).

None of this should be misconstrued as indicating that the voters have no say, of course they do. Madison wrote of this in Federalist 57, "Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it."

Here, Madison is telling us that those elected to lead are to exercise their judgment, to do what they think best, but to know that they will ultimately be held to account for their decisions via elections - that is when the people speak. Madison may have been writing about the US Congress specifically, but he was also writing of the concept of representation generally.

When O'Malley and Arora speak of letting the people decide, one wonders, what did the people of Maryland do on November 2, 2010 if not decide? The voters elected every member of the state Senate, every member of the House of Delegates, and Governor O'Malley. The obligation now falls on the elected to make the tough decisions and to exercise good judgment - not to rely on phone calls, public pressure, opinion polls or any other manner of non-binding expression of public sentiment.  On November 4, 2014, Dels. Alston, Arora, Carter and every other member of the Assembly will face the voters' binding judgment - but before that day they have an obligation to act, to decide, to lead.

In Maryland, the right to referendum exists and the voters of the state are entitled to render their judgment on any particular piece of legislation, but before that can happen it falls upon our elected leaders to make a decision - no matter how hard and no matter the potential impact on their political career.

Too many of the problems in our states and in our nation can be linked to elected leaders making decisions based on the best interests of their reelection campaigns instead of the best interests of the community. We're certainly seeing that in Maryland as our state considers legalizing same sex marriage.

Civil Unions for All?

In a report at MyFoxDC, Del. Alston's position has been clarified considerably. Alston wishes to do away with marriage altogether, and have Maryland recognize only civil unions.

"I believe, as a government, we should issue something that is the same for everybody... And I think, if we wanted to issue a license to everybody and call it a civil union license. And then everybody in the state - whether heterosexual or homosexual - would get the same exact license."

This position clarification makes clear that she recognizes that it would be discriminatory to have marriage for one group and civil unions for another - there would be no separate but equal issue as I wrote about yesterday. But, have we really come to this? Is Alston really saying that she would rather see "marriage" cease to exist in Maryland than extend the right to marry to same sex couples? Following the 1954 Brown v. Board of Education decision ending racial segregation in public schools many state and local governments resisted integration. The Virginia Assembly passed laws allowing the governor to close integrated schools. In Prince Edward County Virginia every public school in the county was closed to avoid integration.

This is just not the path we should be following.

And let me be clear, I am not equating the conditions of racial segregation to the marriage/civil union issue, rather I am equating the basic concept of providing separate institutions or provisions based on a decision that a designated class of people are not deserving of the same rights and protections afforded to most. Civil unions, whether for same sex couples or for everyone, only make sense in a world where same sex couples are considered to be unworthy of the institution of marriage.

A new poll from Pew finds that public support has been rising every year and at present 45% support it and 46% oppose. But when considering polls that provide respondents with a choice between Opposing same sex marriage, Supporting same sex marriage, or Supporting civil unions, an average of poll responses compiled by Charles Franklin shows a clear plurality now supports same sex marriage. In the span of only 4 years support for same sex marriage has moved from a third place finish among those three options to the preferred option.

The American people are clearly moving in the direction of outright support for marriage equality - Maryland has the chance to be on the leading edge of that trend. Ending marriage and replacing it with civil unions would not be a step forward, it would be a step behind.

Same-Sex Marriage Intrigue in Maryland

Update 2: Separate but Equal in Maryland, Roger Taney Would be so Proud


Update: A vote is now expected tomorrow. Del. Carter has indicated that she will vote in favor of the bill. Del. Alston has not stated how she intends to vote.

Legislation legalizing same-sex civil marriage in Maryland passed by a relatively comfortable 25-21 margin in the state Senate last week. Most analysts considered the Senate to be the tougher challenge and assumed that passage would be rather easy to secure in the Maryland House of Delegates... apparently not. As the House Judiciary Committee was preparing to vote to send the bill to the floor 2 members of the committee staged a walk-out and ended consideration of the bill. Dels. Jill Carter of Baltimore and Tiffany Alston of Prince Georges County decided that they weren't prepared to vote for the legislation - an incredibly interesting and mindboggling decision given that both are co-sponsor of the bill.

Del. Carter later indicated that she was withholding support because she feels that the Assembly should be focused on more important issue such as education or child custody... one may reasonably ask then, why she chose to sponsor a bill that she deemed to be of lesser importance. Alston told press outlets that she was reconsidering her position, but later issued a statement in which she wrote "As a law maker it is my duty and privilege to serve the people and try to find balance and equity where inequity exits. This duty is compounded when your personal religious beliefs are contrary to what you believe to be fundamentally right for society.... Accordingly, I have resolved that if and when the chairman calls the vote I will be ready to vote based on what I believe is right..”

Many interpret Alston's statement to be an indication that she will support the bill. In another development, Del. Melvin Stukes of Baltimore withdrew his sponsorship of the bill explaining that he thought the bill only provided for civil unions and not for civil marriage. In the spirit of full disclosure, I know Del. Stukes and have the utmost respect for him, but the text of the bill has always been clear with regard to legalizing civil marriage.

So what's happening in the Maryland House? Why are co-sponsors of the bill flaking out? The most likely explanation is that they sponsored the legislation based on the assumption that it would never pass in the Senate and they would never be called upon to cast a vote in favor of it. Now, there is a very real possibility that the bill will become law and these lawmakers were not prepared for the pressure of actually casting a vote.

It is likely more than a coincidence that the three delegates referenced are African American and represent predominantly African-American constituencies. As reported by the Washington Post, African-American churches and religious leaders have emerged as a strong voice of opposition to the legalization of same-sex marriage (as have Catholic churches and leaders). No doubt Dels. Stukes, Carter, and Alston have been hearing much of that opposition.

If they happen to be reading this blog post I would ask that they consider the words of Rep. John Lewis, one of America's greatest heroes of the Civil Rights movement.

Writing in 2003 Lewis declared in no uncertain terms “I have fought too hard and for too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I’ve heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred and intolerance I have known in racism and in bigotry.”

Fifty years ago, many states declared that African-Americans were not free to marry the person of their choosing. For a reason as arbitrary as the color of one's skin, a basic civil right was denied. Today, even more states deny the right to marry based on sexual orientation - is that truly less arbitrary?

One need not equate the struggle against generations of pain, suffering, and discrimination suffered by African Americans with the contemporary civil rights struggles of gay and lesbian Americans - but one should certainly equate the basic concept of fairness and equality under the law. In Loving v Virginia, the 1967 Supreme Court decision that outlawed bans on interracial marriage in the U.S., the court declared marriage to be a fundamental civil right. I would ask Dels. Stukes, Carter, Alston, and every other delegate - will you support this fundamental civil right or not?