This week, a judge on the U.S. District Court for the District of Utah heard arguments in a case challenging the state’s constitutional amendment banning same-sex marriage.  Considering that this is one of just 40 such challenges in 22 states, this may not seem like a particularly unique development.  However, the Utah lawsuit – and all other lawsuits challenging state marriage bans – represent a fundamentally different approach to achieving marriage equality than the recent votes in the Hawaii and Illinois legislatures to permit same-sex marriage.  The question that arises is this: when it comes to marriage equality, should it matter if a state’s policy is changed by democratic vote or by judicial decision?

Inevitably, the issue boils down to majority versus individual/minority civil rights.  Voting on marriage equality via legislative bills or ballot initiatives is attractive in the obvious sense that it is the more democratic route.  Naturally, both sides of the marriage equality debate have favored voting on the issue if their state is politically supportive.  Of the 16 non-tribal jurisdictions (15 states and the District of Columbia) that have legalized same-sex marriage, 11 did so by legislative act: Vermont, District of Columbia, New York, Maine, Maryland, Washington, Minnesota, Delaware, Rhode Island, Illinois, and Hawaii.  All 11 jurisdictions reliably vote democratic in presidential elections, and a Gallup poll taken early this year indicates that 7 of these jurisdictions are among the 10 most liberal in nation, based on a sample of adults who self-reported their political ideology.  Accordingly, marriage equality advocates in “liberal” states have put the issue to a vote with little to fear; the Vermont legislature had sufficient votes to both pass a marriage equality bill and override the Republican governor’s veto.

The democratic rout looks less tenable to marriage equality advocates in more conservative states; in such jurisdictions, court challenges may be the future of activism.  The prototypical case here is Iowa, where the state supreme court decided in 2009 that that the state’s restriction of marriage to man and woman violated the state’s constitution.  Some marriage equality advocates seem to turn to the courts after legislative efforts fail.  This seems to be the case in New Jersey: advocates launched a successful lawsuit against the state after the Republican governor vetoed a marriage equality bill that had passed both houses of the legislature.

Personally, I believe that opponents of judicial intervention have little to stand on.  While the democratic process is indeed the preferable method for most issues of public debate, this is not a debate over whether to decrease the state pension fund or increase the state tobacco tax; this is a debate over whether a minority will be denied a civil right that the majority enjoys.  Today, few Americans –including opponents of same-sex marriage – would publically claim that citizens should have voted to abolish state bans on interracial marriage rather than the Supreme Court striking down all such laws in 1967’s Loving v. Virginia.

In the end, I believe that marriage equality advocates should follow whichever route promises the greatest chance of success.  Where citizens of a state are inclined to vote to affirm the civil rights of their LGBT neighbors and family, clearly a vote is preferable.  However, civil rights are not beholden to majority rule.  Where the majority of a state’s citizens or legislatures would likely vote against marriage equality, would-be husbands and wives deserve to proceed via the judiciary.  Men and women denied who are denied civil marriage by the majority for arbitrary reasons should not be lectured to about democracy.

(Sources for this article can be found at the hyperlinked text within)