Same-Sex Marriage and the Expectations of Citizenship

Same-sex marriage rally in front of the U.S. Supreme Court (March 27, 2013)

What should citizens expect from their government? The answer, of course, is relative. Demands in Syria, from a population engaged in armed revolt to secure a basic level of freedom from autocratic rule, are quite different than the demands we might find in Greece, where citizen protest continues to fixate on economic austerity and its painful impact on everyday life. Circumstance dictates the hierarchy of needs. But more importantly, circumstance can awaken new levels of political consciousness that change what citizens believe is reasonable and right to expect from a government.

We see examples of this right here at home, where earlier this week the United States Supreme Court received arguments on two cases that address the issue of gay marriage. One challenges the constitutionality of Proposition 8, a 2008 ballot initiative in California that bans gay marriage in that state. The other seeks to strike down the Defense of Marriage Act (DOMA), a Bill Clinton-era law that narrowly defines marriage as a union between one man and one woman in order to prevent the distribution of federal benefits to citizens in same-sex relationships. Over one thousand people rallied in front of the Supreme Court on Tuesday and Wednesday, almost all of whom displayed strong support for what has come to be known as marriage equality. For them, and millions of other supporters across the United States, expectations of their government are fundamentally an issue of fair treatment under the law.

By couching the debate in rhetoric of equality — like the movements for African American and women’s rights — gay marriage activists are forcing their government, and the country, to reconsider the meaning of citizenship in contemporary America. However, if we assume that the country itself is moving in the direction of marriage equality — as a number of polls suggest — then the more relevant debate is not one of definition or even growing public support. Rather, it’s about the proper role of the state in protecting an expanded form of citizenship, as well as meeting the expectations that come along with it.

During the oral arguments on Wednesday, Chief Justice John Roberts had an interesting exchange with the lead counsel for the party challenging DOMA. In referencing a “sea change” in the political landscape, Roberts seemed to imply that perhaps the issue of gay marriage should be settled by elected officials, either at the state or federal level. Put another way, it might be improper for an unelected judiciary to preempt a political solution by the country’s various elected institutions, if in fact those institutions reflect a popular will that is already moving in the direction of marriage equality. This argument is grounded in the supremacy of legitimacy, the idea that settlements by elected representatives are more likely to be respected and implemented on a broad scale, thus giving the country and its laws a genuine, coherent, and enduring democratic quality. It also displays a common fear, seen primarily on the conservative end of the spectrum, that judicial overreach is a dangerous abuse of power that drains society of its right to legislate according to its values or needs.

Yet, we need only take a tour through U.S. history to see where this argument loses steam. Minority rights, left to the democratic judgment of majority rule, often suffer without a stronger institutional protection. While it’s true that legislation often carries with it an immediate legitimacy that reflects a snap-shot reading of society, it’s no less true that Supreme Court decisions in this country carry with them a durable quality that is resistent to moments in time where society succumbs to fear or demagoguery, preventing the adoption or enforcement of illiberal laws. If citizenship is composed of certain rights, and those rights are to be applied universally, then they must not be held hostage to a public opinion that, while important, is fluid and reversible. Institutionally, citizenship is defined in the constitution, applied through democratic political institutions, but protected by the judiciary. For the Supreme Court to absolve itself of responsibility for this protection would be an act of institutional negligence, particularly when the core issue within same-sex marriage is not one of religion, values, or even federalism — it is about equal treatment for all citizens under the law. And this treatment cannot be put to a public referendum.

Nor can this treatment wait for a favorable political environment. Marriage has historically been managed on a state level, and the cultural and ideological differences across the country have created stunted, inconsistent, and wildly dysfunctional results. Nine states and the District of Columbia have so far legalized same-sex marriage. Thirty-eight other states have banned it. Unlike their straight counterparts, gay couples legally married in one state therefore risk having their union invalidated on a symbolic and practical level should they move to a state with a ban in place. The national “sea change” alluded to by Justice Roberts is a distraction from the reality that the rights under debate are controlled by states with very different politics. Even if same-sex couples remain in a state where their marriage is legal, they are still shut out from any of the 1,100 federal laws or programs that distribute marital benefits. Yet, a federal fix to legislative discrimination remains elusive, and the current state of congressional politics provides little reason to expect change in the near-term. Even in a highly developed and consolidated democracy like the United States, political institutions are not perfectly reflective of popular will. We see this on issues from gun control, to health care, to financial reform, where decisive legislative action is regularly disrupted by powerful interests in spite of widespread public support.

Reasonable people can disagree about the proper pace of change on many issues, or argue the merits of legislative incrementalism. But institutionalized discrimination, in this country, is worthy of rapid and decisive action. And we are fortunate to have a strong judiciary in place for just that task. In an environment of polarization and legislative paralysis, judicial action to protect the rights of citizenship is a reasonable expectation.

Burmese Days

Earlier this year, in April, Burma held a by-election to fill around 46 vacant seats (in the press, figures range from 44 to 48) in the Lower and Upper Houses of Parliament and regional assemblies. The largest portion of the contested places were in the Lower House, of whose 440 members 110 are guaranteed to be military and 80% of the rest are for the ruling Union Solidarity and Development Party (USDP), who won them in a restricted election in 2010. In this year’s contest, the party of Aung Suu Kyi (National League for Democracy, NLD), a conscience prisoner for almost twenty years and the main opposition figure against the military regime, won all but one of the seats for which it ran. Suu Kyi herself was elected to Parliament.

Some days before the election, Suu Kyi mentioned that there were some irregularities in the process, mainly intimidation and vandalism of political publicity, which called into question the free and fair nature of the process. On the one hand, NLD’s victories suggest that notwithstanding the certainly informed doubts cast by Suu Kyi, the election was not seriously altered in its realization or results by the government. In a recent article published by the Journal of Democracy¸ Larry Diamond calls the elections free and fair, especially if contrasted with previous elections celebrated under the military rule. On the other hand, there are some commentaries in the press pointing to the fact that, although it is noticeable that such a closed regime as the Burmese invited international observers for the by-election of 2012, these invitations arrived late and, once in place, observers faced some restrictions which prevented them from conducting an adequate assessment of the process.

With this background in mind, it is now useful to talk about the visit of a Burmese delegation to the DC area to observe the recent US elections. The day after Election Day, Jeff Fischer’s International Electoral Policy class at Georgetown University met with the delegation to exchange points of view on the election. These are some of the commentaries made.

Having visited polling stations in DC, Maryland and Virginia, the Burmese delegation was able to notice the decentralization of voting regulations: in some places an ID with a picture was required, in others an ID not necessarily with a picture and in still others no ID at all was needed. Furthermore, even within the same electoral district polling station workers enacted regulations differently. In Maryland, the delegation was allowed to enter a polling station but when they tried to do the same thing in another one in the same electoral district and county, their access was denied (apparently, the reason for this was that it was too crowded inside and the delegation had to wait until some people left the place). For someone not entirely familiarized with American electoral legislation the differences among or even within each state can be very confusing and, even more, the delegation noticed it opened spaces for the eventual commission of electoral crimes.

Indeed, the preoccupation for electoral crimes is large. By all means, the misbehavior expected in the US has really nothing to do with the frauds conducted in Russia in favor of Vladimir Putin or the rigging organized by Mexico’s PRI to stay in power. In its last week’s issue, The New Yorker published an article on the effects on having no national ID with a photo on eventual electoral crimes. One of the conclusions was that one of the crimes most likely to be associated with the lack of a national ID, voter impersonation, had very low rates, even marginal, of occurrence. On Election Day, the Washington Post website had a section where voting irregularities were enumerated. Very long waiting lines, regardless of which polling stations closed leaving people without voting. Due to crowded polling stations, provisional paper ballots were used, arousing suspicions among some electors. Some people could not find their polling station and ended up giving up. Problems with voting machines, which got jammed and delayed the process at the polling station or which allegedly switched the vote from one candidate to another. Of course, practically all of these issues were focalized and did not threaten the election. But in some countries they might have been able to raise questions on the overall integrity of the process.

So, notwithstanding those problems of diverse regulations and practical situations, the Burmese visitors, in a Tocquevillian fashion, happily underscored the democratic attitude of electors, polling station workers, candidates, and their supporters. Thus, political adversaries were very tolerant of each other (they mentioned that in Burma the reconciliation had been much more between Suu Kyi and the military rulers than at the level of the still very divided society), people did not try to overcome holes in the legislation and in fact everyone who wanted to vote could actually do so, without encountering language, physical accessibility or other kinds of barriers, and the high spirit of voluntarism from polling station workers allowed for voting sites to keep running in a cordial environment notwithstanding, so to speak, technical problems. These were lessons for them to take home.

However, they expressed their concern or surprise with the apparently little space provided for political minorities in the American party system. Congressional practices, media, and electors consciously or not supported the bi-partisan mode, leaving smaller parties without platforms to show their projects and to achieve representation. It can be said that the bi-partisan system is part of a very long tradition in American politics, and that it is the result of the combination of a strongly institutionalized system plus the median-voter theorem. As well, it is an interesting invitation to reflect upon the relative polarization and disenchantment produced by today’s parties. Hopefully, this dialogue will continue in the future.

Election Day! USA!

Citizens of the United States have the right and the privilege to cast their votes for the political leaders of their choice today. Do not make light of the civic duty that so many people in this world strive to have. Got to the polls. Have your voice heard. Participate in this democracy.

Your polling location can be found here: bit.ly/RG5fjx  or visit your state’s Board of Elections website.

San Juan, My Love

Next Tuesday, elections for President and Vice President of the United States will be held in its 50 states and the District of Columbia. At the same time, the Commonwealth of Puerto Rico will undergo a referendum in which two questions will be asked. First, “Do you agree that Puerto Rico should continue to have its present form of territorial status?”, that of unincorporated territory, which is controlled by but is not part of the United States. Second, “Regardless of your selection in the first question, please mark which of the following non-territorial options would you prefer: Statehood, Independence, or Sovereign Free Associated State.” In the event that statehood wins, Puerto Rico could begin a surely lengthy process to become the 51^st state of the US.

Referenda on the political status of Puerto Rico has occurred previously three times: in 1967, 1993, and 1998. In general, the stakes have remained more or less the same. To remain a commonwealth would imply maintaining the US citizenship, the fiscal structure of the US, and more fluid investments from American companies. However, the restrictions from voting for President and having representation in Congress would also be kept. Statehood means that Puerto Rico would acquire those two rights, overcoming the democratic deficit of not electing their Head of State (the President of the US) and not having representation voice or vote in Washington. Under independence, Puerto Ricans would lose any formal link with the US; those who support this position say there is no reason for their country not to be ruled by itself, and that it is the best way to preserve the cultural Spanish heritage. The results of previous referenda have been:

1967: Commonwealth, 60.4%; Statehood, 39.0%; Independence, 0.6%.

1993: Commonwealth, 48.6%; Statehood, 46.3%; Independence, 4.4%.

1998: Commonwealth, 0.1%; Statehood, 46.5%; Independence, 2.5%; Free Association, 0.1%;  none of the above, 50.3% (apparently, the main reason to explain why this last option won is that the definition of Commonwealth was not sufficiently clear and was missing some important aspects in terms of Puerto Rican holding US citizenship).

A first observation suggests that the statehood status is a realistic alternative for Puerto Rico, whereas remaining in a Commonwealth relationship with the US is a weaker option. The results of the 1998 are biased because of the polemics about the definition of Commonwealth, and they do not clearly show the evolution of preferences among electors. Even with this caveat, it is interesting to notice that the support for statehood remained practically the same five years after the previous referendum took place.

An extrapolation of those results in the referendum next Tuesday would be somewhat obvious: Commonwealth and Statehood will be in close competition. Assuming there are no conflicts on the wording of the questions (no one has raised the issue so far), what other factors could contribute to the definition of the vote of Puerto Ricans especially for those two alternatives? The economy could be. Now, the US might not be as attractive to Puerto Ricans as almost fifteen years ago; recession and unemployment are the trademarks of the current economic situation in the US. However, in a national poll in Puerto Rico almost 60% of the respondents said the country was “not going in the correct direction”; 40% of the sample said their economic situation had remained the same for the last four years, making unemployment the second and the lack of economic development the third of Puerto Ricans’ most important problems of the country (crime being the first). Thus, the internal economic situation is not particularly attractive in the short term. In that same poll, 55% of the people said they would vote “yes” to the question in the referendum of keeping the present territorial status of the country, while 36% said “no”. Furthermore, 44% replied they would prefer statehood for Puerto Rico, 37% would be fine with the Commonwealth, and 6% wants independence. A pro-statehood tendency seems to appear in the long-run for Puerto Rico.

It is difficult to assess whether statehood for Puerto Rico would mean a change in its level of democracy. As pointed out above, some people argue that the current status of the country implies some deficits, as the last word on internal issues does not lie within Puerto Rico’s own borders and its citizens do not have the capacity to vote for all the elected officials with jurisdiction over the country. However, it would not be easy to sustain that Puerto Rico suffers from authoritarian politics and policies. This situation somewhat resembles that of Canada until the eighties; Canadians argued that their country was not a full democracy given that any change to the Constitution had to be approved by the House of Commons in London, where they had no representation. Prime Minister Pierre Elliot Trudeau then decided to “patriate” the Constitution to Ottawa. However, the Queen is still the unelected Head of State, as happens in most of other Commonwealth countries. Again, no one would doubt about the good level of democracy in, for example, Australia. But, once more, a positive result for Puerto Rico statehood within the US does not mean an immediate incorporation to the Union; it took around ten years for Alaska and Hawaii to be recognized as US states with full rights and obligations. Calculations on how the balance between Democrats and Republicans would be affected by new Representatives and Senators from Puerto Rico have a very large share in the incorporation process. The question here seems to be not one of institutions but rather one of multiple identities and the sense of a community. If Puerto Ricans say on Tuesday they do not want to join the US, then everything remains the same. But if they say they do, then the US would have to answer if they want Puerto Rico to join them, which is quite another story.

Call for Papers: Politics of the Economic Crisis

In the 10th year of the print edition of Democracy&Society, our journal will take a deeper look into the reconfiguration of political forces after the economic downturn, with particular attention to its effects on democracy, sovereignty and the clash between expansionism and austerity. Don’t miss the opportunity to participate!

Democracy & Society, Volume 10, Issue 1

 We are seeking well-written, interesting submissions of 1500-2000 words on the themes below, including summaries and/or excerpts of recently completed research, new publications, and works in progress. Submissions for the issue are due Monday, October 22nd, 2012.

Politics of the Economic Crisis

The turbulence created by the economic crisis of 2008 went far beyond the financial sector. The political upheaval that ensued has reignited ideological debates among scholars, policymakers, and civil society over the proper role of government in the economy. The ideological arguments for austerity on the one hand, and expansionism on the other, have resulted in a clash that precipitated the fall of governments all over Europe and contributed to the dramatic polarization and political stalemate in the United States. The consequences of the economic downturn are still unfolding, but its political effects on policymaking, democratic institutions, and national sovereignty are already a reality. In order to better understand these developments, several questions can be addressed, including:

-                    The boundaries of sovereignty and the future of the Euro Zone – European governments continue to clash over policies of austerity and expansionism. The European Central Bank along with the largest European economies insist on imposing austerity measures on the weakest Euro Zone members, and the loss of decision-making power by national governments is creating new tensions between domestic political demands and international economic realities. What might the European Union look like in the future? Is further integration via fiscal unity a viable option at this point? Or will political dissatisfaction and financial constraints lead to a reconfiguration of the Euro Zone? What are the consequences for democracy in countries such as Greece, Portugal, and Spain, whose governments are under pressure from supranational bodies?

-                    The Hardening of Ideological Divides – U.S. policymakers responded to the financial crisis by injecting hundreds of billions of dollars into the economy. This approach provoked protests and intensified the ideological debate between left and right over government roles and responsibilities. Did the financial crisis fundamentally change the balance of political power? What does the inability of the United States to conduct meaningful financial sector reform say about dominant political forces in the country? And what does the current political gridlock, along with its ideological undercurrents, mean for the future of American democracy?

-                    State regulations and interventions – A good part of the discussion of how to prevent future crises has focused on the correct level of state regulation of the economy. Some argue, however, that the issue is not the quantity but rather the quality/content of the regulations and relationship between state and society. Is the paradigm shifting? What lessons are policymakers drawing about this particular relationship? Is the new “State Capitalism” – with governments at the center of stability and growth promotion – a useful model, and are we likely to see more countries adopting it moving forward?

-                    Reviewing the Washington Consensus – The responses to the crisis have been marked by massive infusions of cash in national markets and an exponential increase in the amount of debt that governments have accrued in an attempt to keep their economies afloat. Once considered nearly extinct, believers in “Keynesian” stimulation via large budget deficits are now mainstream. Is the new flexibility on fiscal discipline, manipulation of interest rates, deregulation, and even nationalization of industries signaling the demise of the Washington Consensus? Or are the expansionary policies of today merely a temporary bitter pill that will be discarded once the threat of recession fades?

-                    The rise of inequality and the future of the middle class – One of the signatures of the current economic downturn, primarily (but not only) in the U.S., is the rise of inequality in rich countries, with particular losses for the middle class. This trend is not new, but the expanding gap between rich and poor has accelerated recently. Some argue that inequality is right at the center of the financial crisis since it prompted policymakers to expand and ease credit for families. How does the weakening of the middle class impact the future of democratic politics? What does the current level of inequality say about the success of developed democracies, and should less-developed democracies re-think their approach to economic growth?

-                    Rebalancing world forces –The difference in the pace of growth for areas previously known as “center” and “periphery” since the beginning of the crisis has profoundly impacted the international balance of power. It has become commonplace to say that the G20 has replaced the G8, and institutions such as the IMF and the World Bank face pressure for reform to reflect the new influence of emerging economies. However, old structures resist this reconfiguration of geopolitical power. How did the economic crisis impact international coordination and decision-making? Is global power really shifting? Who are the winners and losers of this emerging scenario?

Please email submissions to democracyandsociety@gmail.com. For additional information, please visit www.democracyandsociety.com or contact Andrea Murta or Josh Linden at democracyandsociety@gmail.com.