While I live in Florida, I am from Maine. Hence, I followed the recent events there with some interest. The Maine legislature had passed a law that had legalized same-sex marriage and this was signed by the governor. However, Maine law allows a law to be brought up for a direct vote by the people.On November 3, Mainers voted to repeal the law by a fairly narrow margin. Not surprisingly, folks who are against gay marriage are thrilled and see this a great victory. Those who support gay marriage, obviously enough, regard this as a serious setback.
As this situation illustrates, this aspect of law can be seen as something of a two-edged sword. On the positive side, I regard the ability of the people to repeal a law by a general vote to be a key part of a truly democratic system. After all, democracy is based on the assumption that people have the right to chose the laws they wish to live under (or not live under). If we accept majority rule, then we must accept that the majority have rejected same-sex marriage in Maine and that this is how things should be-until those supporting same sex-marriage can achieve a majority.
On the negative side, such direct democracy allows for the tyranny of the majority. As Mill argues in his work On Liberty, the majority can use the government to oppress a numerical minority and this can be unjust and wrong. While Mill does not advocate rejecting the democratic approach, he argues that an individual should be allowed complete liberty in regard to the aspects of her life that affect her alone. As such, one might argue, the repeal of this law imposes on the legitimate liberty of homosexuals by denying them the freedom to marry. As such, the repeal of the law was a wrongful act and should not have been done.
Of course, it can be argued that the repeal of the law does not present a special interference with the liberty of homosexuals. After all, the repeal of the law leaves homosexuals with the same liberty as heterosexuals-they can marry any consenting person of legal age who is of the opposite sex.
This can be countered by a basic analogy. Imagine that a law was passed that allowed golfers to play golf and then it was repealed by the tennis playing majority. While the golfers are free to play tennis, that is not their sport and hence their liberty has been impaired. Likewise, homosexuals are denied the right to marry the people they wish to marry and this restricts their liberty.
It is at this point that some folks will bring up the claim that if we allow such a liberty, then this would open the door to all sorts of marriages-such a people marrying goats or allowing for incestuous marriages. While slippery slope arguments of this sort have an emotional appeal, they lack logical force. When allowing a change in the marriage laws, there is no reason why such a change must lead to the dire consequences predicted by the slippery slope folks. This is nicely illustrated by the fact that all the dire predictions of doom used to argue against interracial marriage failed to come about.
Speaking of doom, Mill does allow liberties to be restricted if such liberties are harmful to others. After all, if something I do harms you unjustly, then I have no right to do that. In the case of same-sex marriage, while some folks get irate about it, this is hardly the basis for claiming that it will harm them. The objective evidence seems to be that allowing same sex marriage will have no negative impact on marriage itself or society in general.
As I always argue, if people claim that homosexuals should not be allowed to marry because they are immoral and hence will harm marriage, then consistency requires that we apply the same standard to all marriages-that is, immoral people must not be allowed to marry and all immoral people who are married must be divorced. We could start the process with married people we know are immoral-like the famous politicians and religious leaders who had affairs or were involved with prostitutes. Then we could set up boards of marriage protection to assess anyone who wishes to get married or stay married. Naturally, we should start with the religious folks who are most critical of same-sex marriage. Since they are throwing stones, surely they must be without sin and have nothing to fear from having their moral characters thoroughly assessed to see if they are worthy of marriage.
In fact, I will go so far as to demand that any state which does not allow same sex marriage set up such boards. After all, if the people there are so worried about protecting marriage, then they surely would want to take this logical step. Since I am a professional ethicist with a PhD and almost two decades of experience teaching ethics, I would be pleased to help set up such boards and would even serve on the Florida board (for a fair salary, of course). I know there are plenty of married folks who lack moral purity and it would be an honor to save marriage from them. In fact, when we are done preventing and nullifying all marriages involving people who are not morally pure, marriage will be completely protected because no one will be married and it will be pure and unsullied.