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Monday, February 27, 2006 - Page updated at 12:00 AM

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Some question use of ballot box to settle issues like gay rights

Seattle Times staff reporter

The issue seemed ripe for victory.

In 1997, a gay-advocacy group called Hands Off Washington placed on the state ballot an initiative that would have extended workplace protections to gays and lesbians.

It was a calculated risk: When voters are asked to determine rights and protections — whether for immigrants or minorities — they seldom are in a giving mood.

Nonetheless, group members were confident, buoyed by polls showing strong support for workplace protections for gays and emboldened by the failure of opponents the previous year to collect enough signatures to put gay-rights and gay-adoption bans on the ballot.

The gamble proved a disaster. Voters trounced Initiative 677 and sent its backers into oblivion.

Now, almost a decade later, Washington voters likely will be asked again to consider protections based on sexual orientation. A proposed referendum by Tim Eyman would overturn a statewide gay-rights measure passed by lawmakers and signed into law by the governor last month.

And as forces line up on either side of the referendum, new attention is being focused on the practice of putting rights and protections to a public vote.

Some legal and political experts say it's inappropriate. Voters can be arbitrary, they say, as reluctant to take away rights as they are to grant them. And they may be too easily swayed or too burdened by biases to make fair decisions on matters crucial to people's lives.

"After all, what are rights if they can be voted up one year and down the next?" said Brian Silver, a Michigan State University professor of political science.

Other experts argue that it's wrong to extend special housing and workplace "rights" to lesbians and gays, and that voters have every right to weigh in if lawmakers do so in the face of wide public concern. That's what democracy is about, they argue.

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"For something this important, people have every right to set social policy," said Peter Sprigg, vice president for policy with the Family Research Council, a conservative think tank in Washington, D.C.

Three-decade fight

Gay-rights activists in Washington state had been trying for nearly three decades to add sexual orientation to a list of classifications such as race, sex and religion that are protected in the state's anti-discrimination law.

The Legislature passed such a bill in January, making Washington the 17th state to do so.

Within days, however, Eyman announced he would seek a referendum to undo the law, saying such protections amounted to special treatment for gays. He also is pushing an initiative that would prohibit state government from requiring quotas or other preferential treatment for any person or group "based on sexual orientation or sexual preference."

In the meantime, gay-rights supporters have formed an organization called Washington Won't Discriminate, to beat back the signature drive and — failing that — defeat the measure at the ballot box.

Backers of Eyman's referendum say it's proper that an issue this important be decided by voters.

Unlike constitutionally protected rights such as voting, issues involving employment and housing really amount to just a clash between employers and landlords wanting to make their own decisions and claims by homosexuals that they are entitled to protection.

Sprigg, of the Family Research Council, said the government should interfere in such cases rarely — when the characteristics of those claiming discrimination involve what he calls the five "I's:" inborn, immutable, involuntary, innocuous and in the Constitution, such as race and gender.

"The choice to engage in homosexual behavior meets none of those criteria," Sprigg said, contending that issues related to homosexuality therefore are not worthy of civil-rights protection. "I see no reason why they should not be subject to a vote."

But others argue it's unfair to leave people's rights in the hands of those who might vote them up one year and down another.

Furthermore, the typical voter lacks the tools available to legislators who can hold hearings, listen to testimony and have bills analyzed, said Stephen Clark, an associate professor of law at Albany Law School in Albany, N.Y.

"The framers of the Constitution ... were not at all opposed to citizen participation and self-governance, but they wanted it done in a way that required deliberation," Clark said. "Part of the problem with the initiative process is that it's not deliberative or informed decision making."

"Rights" hard to win

In state after state, when voters have been asked to extend a right, the results rarely have favored the group seeking protection.

To date, citizens in 19 states have voted for constitutional bans on gay marriage, and the issue is likely to show up on the ballot in six others this year.

But voters can be fickle, switching positions on the same issue from one year to the next, as was the case in Maine.

Since 1998, the Maine Legislature has thrice passed a gay-rights law — which residents twice voted to repeal before letting it stand on a third vote last November.

In a few cases, courts have restored rights that voters took away.

Colorado voters in 1992 passed a constitutional amendment that nullified existing city ordinances prohibiting discrimination against gays and lesbians and prohibited passage of any more. The U.S. Supreme Court struck down the measure.

A federal judge similarly overturned major provisions of California's Proposition 187, a measure voters overwhelmingly approved in 1994 that denied public education and other benefits to the state's expanding population of illegal immigrants.

Arizonans in 2004 passed a similar measure, Proposition 200, portions of which are being challenged in court.

Todd Donovan, professor of political science at Western Washington University in Bellingham, said voters often are as reluctant to take away existing protections as they are to grant new ones.

"Most measures that have made it to the state ballot intent on rolling back existing protections fail," he said. "Most measures to establish new protection also fail."

Spokane voters rejected a 1999 attempt to overturn gay protections the City Council had put into place that year.

And when the Tacoma City Council passed a measure to grant similar rights in 2002, voters there also refused to overturn them. Twelve years earlier, voters had rejected a measure to extend such rights in the first place.

"I'm not sure how much that has to do with being proactive versus defending," said Laurie Jinkins, who worked on both Tacoma measures and in 1997 was co-chairwoman of Hands Off Washington when it launched its doomed Initiative 677.

It could be the passage of time, she said. "People evolve in their thinking."

A doomed effort

Washington gay-rights activists, preparing for the upcoming fight over Eyman's measures, can take lessons from their own past.

In 1997, the gay community had an early disagreement about the wisdom of putting a rights measure on the ballot.

Some, including Rep. Ed Murray, D-Seattle, who had been trying for years to push a bill through the Legislature, were not convinced an initiative was the right way to go.

But at the time, Seattle and King County were among the only places in the state where gays had workplace and housing protections, Jinkins said. And leaders of Hands Off Washington believed that, after 21 years of failed efforts in the Legislature, it was time everyone in the state was covered, too.

"Those of us who lived outside Seattle and King County felt strongly about this, that we needed these protections and wanted them and were willing to take the risks," Jinkins said.

Additionally, she said, conventional thinking in those days was that initiatives were the way to get things done in Washington. "We knew it would take hard work," she said. "We didn't think it would be a slam-dunk."

In retrospect, organizers admit they spent too much time preaching to the choir — spreading their message to gays and supporters whose votes they already had, instead of targeting voters who disagreed with them or perhaps didn't understand the issues fully.

And exit polls showed that many people believed gays already were protected by law and therefore may have figured they were being asked to extend something extra.

Initiative 677 also may have been a victim of circumstances that November when a plethora of initiatives on subjects ranging from guns to dental hygienists to marijuana crowded the ballot. Voters rejected them all.

Activists say times — and public sentiments — have changed.

"I think we'll win if people understand what the issue is," said Dave Horn, a former president of the Privacy Fund, a statewide gay and lesbian lobbying group.

Supporters of the recall say they, too, believe informed voters will see it their way and reject the new gay-rights law. "It's creating a special class — and that's wrong," said Randy Leskovar, senior pastor of Calvary Chapel West Seattle.

Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com

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