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Vote of the people usually a vote for more equality, not less

ALBUQUERQUE, N.M. — Reacting to the New Mexico Supreme Court’s decision that gay marriage is legal here, Gov. Susana Martinez called it “the law of the land” and said she is ready to move on. But she also said, “I’m confident that most New Mexicans believe, like I do, that it should have been settled by a vote of the people.”

State Sen. Bill Sharer, in explaining why in this legislative session he’s pushing again and against all odds for a constitutional amendment that would prohibit gay marriage, said, “Until the people accept it, it is not settled.”

Sen. Nora Espinoza, the bill’s co-sponsor and the standard-bearer of the one-man/one-woman fight in the Legislature, says, “We want the people of New Mexico to be given the right to decide and put this to rest.”

Sharer, when speaking about gay marriage, likes to spin out crazy comparisons to illustrate the slippery slope: If we allow two men to marry, what’s next? Legally married threesomes?

Let me join in that game: If we get to vote on gay marriage, what’s next? How about a measure that would bar redheaded children from public schools? A referendum on whether the disabled should get medical care?

Well, no.

The idea of going to the ballot box and having a say in how a minority group of people gets treated by the majority seems … wrong.

As I was fumbling around trying to understand why it seems un-American to contemplate weighing in on a ballot measure that would take something precious away from another American, I sought out Professor Emeritus Michael Browde, a veteran of 30 years teaching the constitutional law class at the University of New Mexico School of Law.

He quickly put his finger on it: “Because it’s contrary to a rather fundamental notion of constitutional rights protecting minority rights?”

Well, yes.

Browde pointed me to the first citation in New Mexico Supreme Court Justice Edward Chavez’s eloquent opinion that said our state’s marriage law must be applied equally regardless of a couple’s gender. It comes from a 1943 United States Supreme Court opinion on the rights of Jehovah’s Witnesses to not salute the flag in school.

The quote: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship, and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

But we do put rights up to majority votes through constitutional amendments. The right to be free of slavery (the 13th Amendment, 1865), the right of blacks to vote (the 15th Amendment, 1870), the right of women to vote (the 19th Amendment, 1920), the right of 18- to 20-year-olds to vote (the 26th Amendment, 1971).

The federal constitutional amendment process is onerous, requiring the approval of two-thirds of the House and Senate, and three-quarters of state legislatures, which might be why the U.S. Constitution has been amended only 17 times since the Bill of Rights.

New Mexico’s process is easier, requiring for most issues just a simple majority of the House and Senate and a simple majority of the voters. And that might be why our Constitution has been amended a couple hundred times in our short history.

From a process standpoint, Browde points out, there’s absolutely nothing wrong with reacting to a state Supreme Court’s ruling you disagree with by pushing to get an amendment on the ballot. It’s just part of the system of checks and balances on power that is written into our system.

“The court rules in a certain way and an amendment is proposed; it’s put to the people and it’s approved or not approved,” Browde said.

The result is that we can take away rights by amendment.

“Yeah,” Browde say, “but how many times have we done that here in New Mexico?” We haven’t. Nor have we done that collectively as Americans. What we tend to do instead is to expand rights, to open the tent, by way of amendments.

Why?

“I hate to say it because it sounds so Pollyannaish,” Browde says, “but I think the body politic is more intelligent and more concerned about individual liberty than the particular interest group pressures acknowledge.”

The odds are good that Shearer and Espinoza’s proposed amendment won’t still be standing when the session ends, although some other of the other proposed constitutional amendments might be.

At any rate, the issue here could be moot. By the time New Mexicans had the opportunity to vote on it, the issue could already have been settled by the United States Supreme Court.

But, Browde says, “maybe there’s a value sometimes of putting some of these fundamental rights issues back in the political debate and let’s see what happens.”

So even if the debate is uncomfortable for the minority group in the question, the system works?

“For the most part,” Browde says. “And having that debate has a value.”

He mentioned a recent ballot measure in Albuquerque that would have restricted abortions after 20 weeks of pregnancy. It went on the ballot, it was debated in public, the people went to the polls and it was defeated.

Another example: At the height of the Vietnam War protests, there was a push to amend the Constitution to outlaw burning the American flag. It never got out of Congress.

“When you have that debate and you don’t pass (a restrictive) amendment, there is a public reaffirmation of the values,” Browde said. “The value is that each generation gets to rechew and maybe an opportunity to reaffirm these fundamental rights.”

UpFront is a daily front-page news and opinion column. Comment directly to Leslie at 823-3914 or llinthicum@abqjournal.com. Go to ABQjournal.com/letters/new to submit a letter to the editor.

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