Patricia Nell Warren

When the "Will of the People" Goes Wrong

Filed By Patricia Nell Warren | November 07, 2008 4:00 PM | comments

Filed in: Fundie Watch, Marriage Equality, Politics, Politics
Tags: ancient Rome, balance of power, judicial branch, lawsuits, legislative branch, Prop 8, republic history, same-sex marriage

With the election over, religious righters are smugly insisting that "the will of the people" has spoken the final word on same-sex marriage. Voters in California, Arizona and Florida denied us the right to marry in their states. "The people's will" is one of those grand and ringing phrases that the righters like to throw around, and they're always pleased if "the people" vote to support their ideology.

But these ideologists have clearly flunked Civics 101. As government, "the people's will" is far from being the last word on anything.

As Abraham Lincoln pointed out, you can fool some of the people some of the time. By putting a lot of hype and lies on the air, a powerful multi-church lobby fooled "some" Californians. As a result, a slim majority of voters did what the lobby wanted and voted yes on Prop 8. But if "some of the people" had not been confused by deceptive advertising, they might have voted no on 8.

History gives us some scary examples of how "the people's will" can go off the deep end. In Germany in 1932, when the country was still a republic with free elections, the German people actually voted the National Socialist Party into power because they believed all the Nazi hype. In the U.S., well into the 1900s, the "people's will" was expressed by the white male vote, which kept women and people of color disenfranchised. Indeed, in the South, the white male vote ensured that slavery stayed institutionalized for nearly a century after our nation was founded.

So "the people's will" is a sword that can cut both ways -- sometimes with unconstitutional, even disastrous results. That's why the ancient law geniuses of Western civilization went into slowly, painfully tinkering with a working model of good government till they finally invented the idea of a republic. Not only did it vest sovereignty in the people, but it separated the various powers of government in order to create greater flexibility -- the so-called "balance of powers."

The word "republic" comes from Latin res publica, meaning "the people's business." Our U.S. balance of powers is traditionally described as three-fold: the executive branch, the legislative branch and the judicial branch. I would add a fourth -- the electoral branch. In the 20th century, the popular vote surged into greater power with the broadening of voting rights -- especially since the 1980s, when the trend in direct voting on statewide initiatives and propositions got started.

Result: our nation can always put these four dynamic powers into play with each other. They can keep each other in check, ensure justice, correct abuses and open up new directions. The four powers are like a wonderful compass with its four cardinal directions -- they can tell us when we're lost, and get us headed in the right direction. All are set forth in the U.S. Constitution as well as in state constitutions and city charters.

Religious righters scream a lot about how the U.S. should stop screwing around and apply the Constitution strictly (what they really mean is that their own beliefs should be the only ones protected by the Constitution). But they don't seem to understand that the Constitution (as well as its amendments, the Bill of Rights) can't be put into action without applying some or all of these four dynamics.

Those "Godless" Romans

To Americans who believe that "our country was founded on biblical principles under God," it must come as an awful shock if they finally do their history homework. They learn that our founders adopted that republic model from [gasp, shudder] the ancient Romans. You know -- those people in togas that we've all seen in a million Hollywood movies, who believed in whole trainloads of goddesses and gods, who allegedly lived for nothing but sex orgies and bloody gladiator games. Actually, those people in togas were pagan geniuses at engineering of all kinds, and that included the social engineering called government.

Why did our "godly" founders have to reach clear back to the times of "godless Rome" for good government? Because European Christianity had absolutely nothing to offer on that front. Up till the 16th century, Christianity had elected to govern mostly through monarchies and empires, where heads of state could seldom be held accountable by their long-suffering people, even in the worst-case scenarios. Unquestioned religious authority was best protected by kings and emperors whose civil authority couldn't be questioned either.

Our founders had had it with monarchies and empires. By the time their war of independence with Britain was won and they sat down to draft a new government in the Constitutional Congresses, they were looking for something better. As educated men who knew their ancient history, they decided to update and customize the republic model for the New World.

The Roman republic was founded in 509 BCE, by a confederacy of Italian tribes who had had it with a cruel and corrupt monarchy. Historians usually describe it as having a three-fold separation of powers that acted in balance with each other. There was the advisory branch -- meaning the Senate, which was comprised of patrician elders who set policy. There was the legislative branch -- meaning tribal assemblies where the 35 tribes voted in direct democracy to make decisions and elect public officials. And there was the executive branch -- meaning the actual officials who did their jobs. But a judicial power was there too -- the Romans had a law code and jury courts to settle issues.

In peacetime, the Roman republic had no head of state. During times of dire need, Rome could elect a war-time chief executive and give him some extraordinary emergency powers. But he held office for only six months, after which he was supposed to step down. The tribes were understandably paranoid about the idea of a military leader staying in power, creating a dictatorship. Unfortunately this threat finally became a reality, when the republic collapsed in civil war; in 27 BCE Augustus Caesar became the first emperor. Out went the balance of power. In, with the worst of the emperors to follow, came all the abuses and horrors of unchallenged imperial decree that one can imagine.

When Christianity took over in the 4th century, it continued to utilize anything useful in the old Empire's MO. By the Renaissance, when independent nations started carving themselves out of the Holy Roman Empire, the first modern nation to revive the old idea of a republic was the Dutch confederacy in 1595, after their successful rebellion against the Holy Roman Empire. Dutch colonists brought their radical governing ideas to the New World.

So we Americans owe a debt of gratitude to the Dutch, even though we like to ignore them in our history books and pretend that America was the "first" to re-discover the republic.

Tweaking the Model

Today our country is still in the process of updating and tweaking the way a republic can work. The Roman model was far from perfect. It permitted slavery...along with a process by which slaves could be freed if a master agreed. Acceptance of the Roman model with its slavery tradition by the new United States in 1787 was one reason why slave-owning managed to keep its grip on Southern society for so long. But the staggering human abuses finally pushed the American people to abolish slavery.

A similar issue affected women -- in ancient Rome, they were not allowed to vote or hold office or be politically active. So the Roman model, with its tradition of second-class citizenship for women, doubtless influenced our founders to deny any voting franchise to women in the first state constitutions. But we have fixed that part of the model too. Best of all, we Americans gradually got rid of our privileged racist voter class, and granted suffrage to almost every class of person.

Oh, and our founders added a permanent head of state, that they called the President, and they put him in command of the military, in the old Roman style. But they were paranoid enough about power take-overs that they limited his terms to four years.

Right now the righters are fuming about "activist judges who legislate from the bench." In the case of Prop 8, they're fuming against the U.S. courts that found in favor of same-sex marriage in some way. In California they also felt stymied by the state legislature, which twice voted to permitted same-sex marriage. So the righters have resorted to a classic shopping around on "balance of power." They shifted to the state electorate, hoping that the popular vote would cement their bigoted definition of marriage into place for all time. They counted on their enormous access to church contributions in order to drench the media with enough propaganda to get the job done.

But the "will of the people" does NOT trump the courts. So we advocates of same-sex marriage now get to do our own shopping with the balance of powers. We activate the judiciary in our own defense. Twenty-four hours after the California polls closed, three lawsuits were filed that challenge the "yes on 8" vote. That is exactly what is supposed to happen in a republic.

In the balance of powers, no single power trumps the other powers on a permanent basis. Americans like to say that federal law trumps state law, but even that saying isn't entirely true, because the federal government can go horribly off the deep end too -- as we've seen the Bush administration do after 9/11 and the civil-liberties issues around national security, when powers with the scope of a Roman dictator were granted to the President.

Who Trumps Whom?


Whenever the federal government "trumps" its way into too much power and abuse, we have the recourses of a balancing power. We can go to the courts. Or Congress can rebel and legislate in a way that compels the President to backtrack.

Or the voters themselves can use a general election to put a new party in power -- which is precisely what just happened. On November 4, the "will of the people" really came through for America. It covered itself with glory. Unlike what happened in California, "the people" saw through all the lies and propaganda thrown at issues by the religious right and its Republican puppets. The "people willed" to nix a Bush administration that had disgraced itself in the eyes of many Americans and lost respect with many nations around the world. And it willed to do that by sending a young black President, our first, to the White House.

In other words, the process of redressing, fixing, compensating, reversing when things go horribly wrong, is always in motion. It's like an ever-moving ocean. This is how a republic that is also a true democracy can work.

The greatest danger to a republic is when all the powers become corrupted -- when the executive branch has seized dictatorial power, when the legislative and judicial branches are too weakened to oppose it, and the electorate is too apathetic or too terrorized to express its will. The United States already came perilously close to this point -- it remains to be seen if we can pull back from the brink under Barack Obama's administration.

In the case of same-sex marriage, the judges who found in favor of it were not "legislating." To say they were is to agree with right-wing ideology, which wants to make the judiciary less powerful than the legislative or executive power. These judges were simply doing their job, which is to interpret, not legislate. But their interpretation does have the force of law. That power was assigned to them by the Constitution and the founders of our country.

So, as these new marriage lawsuits move forward, I hope that all LGBT people, and Americans of good conscience, will support them.

As I write this, protest marches and petitions are exploding everywhere. They are the natural result of how emotional and angry we all feel about the passage of Prop. 8. But street activism probably won't be as effective as a solid, well-aimed use of the judiciary. Protests don't get bad laws and policies changed. Using the balance of powers is what gets change.

We need to find out what the U.S. Supreme Court says about our equal protection under the law where marriage is concerned. Has the Court already been so "packed" by Bush-appointed conservatives that it can't render a fair decision on our issue? We'll have to wait and see. It's important to remember that the U.S. Supreme Court was once pro-slavery. But with time, the Court turned 180 degrees on this. Today, if the high court declines to grant equal protection to LGBT people, we might have to wait till the Obama administration shoehorns a couple more liberal judges onto the Supreme bench.

Whatever happens, it will be classic balancing of powers in action.

_______________

For more great Roman history that shows what liars the religious right are, check out my piece about the Goddess of Liberty on U.S. coins.


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Here's our proposition: that we all look deep inside our souls, and imagine a world where we do and say what we profess. That people of all faiths, colors, creeds, genders, races and persuasions for one day, 24 hours, avoid the powerful human urge to dissimulate and waver, or to outright lie, and instead be and say exactly who and what we claim to be. Christian, Jew, Muslim, Hindi, Mormon, Buddhist, whatever we profess to believe, all these constructs have this in common--love, tolerance and a command from higher authority to reach out and comfort our fellow humans. Call it social caffection with a small 'c'.
Now put that into the perspective of Tuesday's passage of Prop 8 in California. Fearful, uninformed religious conservatives ignored the humanity, sensibility and dreams of their gay and lesbian brothers and sisters by codifying an intolerant, fear-based mechanism that bars them from interacting fully with the society they are told to embrace. Prop 8 is nothing more than a shameful lack of love and tolerance on the part of religious leaders in California. Instead of adhering to the principles their founder ordered, they raised the level of hatred and division, a tired, empty effort to stir up emotional turmoil and solidify control. It's the same tactic despots have used all through history. If their congregations don't question this, the hypocrisy will only continue. Gay marriage in no way undermines the sanctity of marriage; disdain for adherence to professed principles undermines marriage, and all else.
At Caffection, we propose a new proposition. That we all learn to love and embrace our fellows not because we were commanded to, or for recompense, but because doing so makes the world a better place. Let's learn from this and go forward. Call it Prop C.

Reformed Ascetic | November 7, 2008 4:23 PM

Impressive as always Patricia.

I hope you understand that I mean it as a compliment when I say I am going to steal your point about the founders "reaching around" Christian history to the Roman republic for guidance and use it as one of my talking points.

I speak to people all the time who have been convinced by the "this country was founded on Christian principles" meme. It's not enough to say "nuh uh" but I never really thought of anything better. You've presented a nice memorable image to use in the future. Thanks.

Awesome post, Patrica.

The will of this person has decided that not only am I not going to back down from this, but I want to tell you all that someone has started a blog on Wordpress.com at aims to revoke the Mormon church's tax-exempt status for it's support for Prop 8. The URL is http://lds501c3.wordpress.com/

I ask everyone who has read this post to pass around this URL and get to action.

Way to go. My very next post is about revoking the IRS status of not only the Mormons but every other group that underwrote yes on 8. Check it out. It goes up sometime tomorrow.

Way to go. My very next post is about revoking the IRS status of not only the Mormons but every other group that underwrote yes on 8. Check it out. It goes up sometime tomorrow.

patricia, well done! in spite of the recent victory for intolerance and hate, you make me proud to be an american. the struggle for the dream of equality goes on....and perhaps the journey we take in relation to that struggle has as more impact than even reaching the destination. it is a good fight. be well...

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Please don't let it happen again; we expect better of Projectors.

Patricia
Thanks for a brilliant analyis of history leading us up to this moment of equal rights for all. You stated, "We need to find out what the U.S. Supreme Court says about our equal protection under the law where marriage is concerned." They no doubt will refer to DOMA Section 3 of the Act which defines the term "marriage" and "spouse" for all federal laws, and reads, "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the vaours administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the world 'spouse'refers only to a person of the opposite sex who is a husband or wife'.
Frankly, I think it is a waste of time for Gloria Allred and the other legal eagles to be challenging Prop 8 on grounds of "equal protection under the law". She should be getting down to the nitty gritty and challenge seperation of chuch and state The Establishment Clause in the 1st Amendment, as Prop 8 is a religious issue, initiated by fundamental Christians. Why do they all tap dance around the religious issue ? DOMA has never been challenged on these basis.

Charles, you are probably right about the possibilities for suing under separation of church and state.

Check out my next piece tomorrow, with the long long list of church groups that contributed to "yes on 8." It is criminal of the government to allow this.

Reformed Ascetic | November 8, 2008 2:11 AM

The Bush administration has severely hampered any interest in the IRS into these types of investigations. Culminating in the open defiance several conservative churches engaged in this election by not only endorsing candidates and platforms from the pulpit but announcing that they would do so to the national public. Actions which not only clearly violate the law, but were intended to do so.

These churches have openly stated that their hope is to get involved in a lawsuit that will remove all these restrictions.

What they always fail to tell their congregants however, is that they have always been free to say whatever they want. They just have to give up their tax exempt status to do so.

I think it's reasonable to expect we will see at least some changes in the enforcement of the existing laws in the near future.

That is my point, precisely. These churches did what they did because they knew that they could get away with it. After all, they saw how the IRS gave a pass to the Christian Coalition.

Now that we have a new administration coming into office, I would like to see a movement launched to compel the IRS to do its job, and start punishing churches and religious organizations that break the law.

Every time I read one of your posts I refresh what my tired little gray cells learned in college, or I learn something entirely new. Even better, I learn to look at a subject from a different perspective from my own in the light of fact and common sense. And above all, even when you write about how our civil liberties have been diminished to almost nothing, you never leave us without a sense of hope that positive change is not only possible, but likely.

Somehow it feels very much like I'm reading excerpts from Aunt Patricia's Cottage.
*wink*
.

I'm looking forward to the next post. It's about time people started facing the fact that organized religion is a business and should be treated as such. The free ride is over.


Don Sherfick Don Sherfick | November 8, 2008 9:55 AM

Patricia, my human heart and approximately half of my human, civil-liberties-loving, and legally-trained mind is in total agreement with what you've so eloquently and carefully laid out.

But the remaining part of my thinking apparatus remains uneasy, not so much because of principles, but as to the practical wisdom of strategy.

In one sense, our revered concepts of "balance of power", "equal protection", and other constitutional notions are in reality only as pracically valid as our reverence for the "social contract" by which at least democratic societies are said to abide by. In that sense, perception is equal to reality, and at any given moment that reality is what a sufficient number of people THINK are the operative facts and values. And just as most of us who call ourselves progressive reject the notion of a theocratic regimine in which there is but one eternal truth so clear than no rational human mind can resist signing on to, there are many people in this country who do not quite sign up to the notions of how sometimes the popular will should bow to more enduring concepts the judicial branch is there to protect. And the fact that this contrary perception, invalid, misguided, silly, or whatever adjecives we "enlightened and anointed ones" think those views are, their existance remains a reality.

All of that is to say that if we somehow hold a mirror out far enough we will see a number of people, not many of whom we would deem mean-spirited, who tend to view our reverence for the balance of powers and role of the judiciary as really saying that in the end, what the courts say must be the end of things, especially where what we perceive (but they may not) as minority rights are concerned. The notion, incompletely understood though it may be, that in the end there is something undemocratic about judges being able to overrule "the will of the people", is deeply ingrained, and I suspect that that even those of us in the progressive corner of the universe are a bit uneasy about elevating judges too high in the scheme of things. We can talk all day about how a 5-4 decision is either the earthly equivalent of divinely revealed Truth or a sign of right-wing packing by a Bush administration bent on destroying freedom as we know it, but in the end most of us are human enough to admit that we are really talking about whether we agree with a certain judicial decision or cultural philosophy, or don't. That perception becomes reality, too.

Even the most "liberal" courts at least pay lip service to the notion called "judicial restraint", a doctrine that says, in effect: "Yes, we think we have the constitutional power to decide this, but we're going to refrain from doing so", partly, I think, because of a tacit recognition that going too far away (and maybe too fast) from "the popular will" is not always a prudent course.

So what's the bottom line of the above rambling? Merely to say that those who might question the wisdom of immediately taking the issue of Proposition 8 into the courts ought not to be seen as betraying notions of equality or as having abandoned the notion that the courts are there to protect the minority from the majority. (I happen to support the litigation concerning whether or not Proposition 8 should have been advanced as a "revision" and not as an "amendment" under the California Constitution, but wonder about moves going beyond that point). The alternative of letting people see the full impact on the real lives of real people, and then perhaps proceeding to use the "revision" process in the California Constitution to undo what Proposition 8 might comport more with the ultimate reality that a purely judicial one.

I am confident that we will prevail in the end, perhaps with the passage of some time and education. Appearing to prefer and rely too heavily on what for many folks is still the reallity of "popular will" could delay the achievement of that goal.

Wisdoms Naked,
My reverence of you is likened to a Nun to a God (grinning).

I wonder as a matter of historical reference if studying how:
marriages of white women and black men/white men and black women finally secured their full legal rights might be a direction?
Being a part of that Era I remember the Auto Industry and Unions needed the expensiveness of those battles to go away. Employed couples finally led a movement.

Sometimes in battle following the enemy in the same direction is the enemies plan. Rather than choosing histories success.

just musing.

Each and every human deserves love and union and choice.

EarthThunder


The Time of Waiting for G/L Equality is OVER!

(Oklahoma City) A recent joint press release from Equality California, National Center for Lesbian Rights, Los Angeles Gay and Lesbian Center , and the San Diego Gay and Lesbian Center is counseling that "We achieve nothing if we isolate the people who did not stand with us in this fight. We only further divide our state if we attempt to blame people of faith, African American voters, rural communities and others for this loss."

I disagree completely. No longer, no longer, no longer must religion be used as the cudgel to separate any person from their legal rights of fair treatment and protection under the law.

I walked by a religious proselytizer today in downtown Oklahoma City. I had seen him yesterday when he made a speech for Gee-sus on the bus I was riding. Today, though, he was on the sidewalk and said to me, "Did you know God loves you?"

I looked him in the eye for a few seconds and replied, "F*** off!", and walked away.

I've never acted that way to a stranger before and depending on the perceived physical danger to me, it won't be the last time I respond to an uninvited encounter with a proselytizer.

Religion has and continues to be the major block to the implementation of rights for gay/lesbian citizens because of what we do in private and who we love in public.

Religion was the chain around the necks of slaves, it's been the chastity belt forced on women's reproductive choice, and it's been the closed book preventing the age-appropriate teaching of responsible sexual information to children.

Religion instructs the empty-headed to fear our differentness, to treat us with disrespect--and with barely concealed contempt--to encourage violence against our property and bodies.

We gays/lesbians are far too complacent, accepting, and willing in our own disenfranchisement from our birth right as citizens.

I welcome the peaceful protests in California and elsewhere that are demanding the protection and benefits of the laws that are applied to others but not to us.

Our self-appointed equality leaders who counsel shyness and acceptance of a later time should act like leaders or get out of our way. The time is long past for coyness and politeness.

Dr. M. L. King said it best in his "Letter from Birmingham Jail", April 16, 1963 with this paragraph:

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant 'Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied." ( http://www.mlkonline.net/jail.html )

With the immorally presented kangaroo-court vote that passed Prop 8 in California and with other anti-gay measures in Arizona, Florida, and Arkansas, I think we gays/lesbians have waited long enough. Let the marches continue!

And as we march, let's take our chant from the newly-elected President Obama's campaign--Yes, we can!

I know many protests, email campaigns and boycotts are going on right now but what do you think about a concerted effort on Washington particularly with the new administration around Obama's professed support for overturning DADT, DOMA and support for civil unions. I, and many others as evidenced by a thread on Joe-My-God blog are wishing we could get another huge march on Washington scheduled like the one in 1993. There are many legislative remedies for the abuse we are currently undergoing and its time to take it to the top and demand it be stopped. I think we now have support within the Obama administration. Can we get the ball rolling on something like this? I think a show of might may help them realize something must be done and soon because I'm sure with this win those who would take away are equality will feel emboldened to move on to other areas like the Northeast.

Jersey

It may be a good idea as a reminder to the new administration of Obama's promises. Visibility is always important, whether in legal cases or marching on the streets.

You may be too young, but the following is a history of one of the three marches by LGBT's on Washington. (Wikipedia) I am not sure how many toes have been stepped on in the past, because there have been three marches. The third march drew 1,000,000 although the U.S. Park Service said it was 300,000.

The Second National March on Washington for Lesbian and Gay Rights was a large political rally that took place in Washington, D.C. on October 11, 1987. The second such march on Washington, it drew 500,000 lesbian, gay, bisexual, and transgender people to protest for equal civil rights and to demand government action in the fight against AIDS.

The march, demonstration and rally also included the first public display of Cleve Jones' NAMES Project AIDS Memorial Quilt and the first community wedding.

The 200,000 person estimate, widely quoted from the New York Times, was made several hours before the march actually began; similarly, most of the pictures used by mainstream media were taken early in the morning, or of the AIDS Quilt viewing area rather than the march itself. Police on the scene estimated numbers during the actual march to be closer to half a million.

This event & date would also become the starting point for what would become National Coming Out Day.

The march began with a grassroots call out to known lesbian, gay, bisexual, and transgender organizations for an organizational/platform meeting in New York City in November 1986. Steve Ault & Robin Tyler, both of whom had been active in the first march, the National March on Washington for Lesbian and Gay Rights in 1979, felt that the time had arrived for another March on Washington. Representatives from the following schools were in attendance: Brown University; California Institute of Technology; California State Universities at Dominguez Hills, Fullerton, Long Beach, Los Angeles, Northridge, San Francisco; CUNY Hunter College, Queens College; New York University; Pasadena City College, Stanford University, University of California at Los Angeles; and University of Southern California. At the end of the weekend, the overall structure for the National Steering Committee had been set, a gender parity Co-Chair structure (Robin Tyler and Steven Ault) with the usual organizational positions; Stephen G. (check spelling), Secretary (Brown University); and additional Regional (California; Nicole Ramirez-Murray & and Issues/Constituent-related Chairs for organization and special interest input.
The second meeting of the steering committee was held in January 1987 in the City of West Hollywood at City Hall. Jean Conger from Southern California Women for Understanding was the parliamentarian for the meeting. Among the issues discussed were "the personal is political," (Rosie O’Donnell still uses this phrase - "The View" 04.03.07) and a petition for adding atheists to the list of peoples represented.

Thanks you Charles, this is a great help. Good to know the platform and steering commitees began work in November and were able to have the march in April. We're hoping to have it early May of next year. We'd like to keep the focus simple, I was at the 93 march and felt the mission statement was a little long and confusing. We want Obama to make good on his campaign promises of overturning DADT, DOMA passage of ENDA and passage of a federal civil unions bill (well those are my demands as of now). We're going to get a website together for planning and promotion and will let you know.

Thanks Jersey
I will be watching. In my opinion, a "street fair" with hundreds of booths of gay and lesbian organizations and businesses selling stuff would be wrong at this march. We should just focus on the serious issues at hand, our civil rights.

Brilliant piece although I disagree with one point - that protests do not make a difference.
The judiciary is not in a vacuum. In Bowers v Hardwick, Stevens voted against us. He later said that was a mistake and that he did not know any gay people at that time (He had a closeted law clerk!). Judges are aware of massive protests just as they are aware of popular opinion. Protests and activism are an important part of the process of change.

Point well taken. I didn't say that protests don't help. Of course they can help. I just said that they're not what actually gets laws changed. And sometimes more energy goes into the protesting than into the actual hard work of lobbying or litigating new laws.

My bad. Justice Powell, not Stevens.

While there were a few instances where ballot initiatives were used well, it seems that they've just become an excuse to lower policy to the lowest common denominator.

I don't know, I don't think I'll come around to liking the idea that people will make decisions on specific laws based on the quality and quantity of TV ads they saw on it.

It could be argued that this isn't unique to the ballot initiative process, that that's the way everything is decided in our country, but it doesn't mean I have to like it!