But as some Mainers work to overturn the veto that overturned the legislature's marriage-equality bill, one must ask the question: is this the best way to resolve the issue of gay marriage's legality? By "best," I do not mean the quickest or easiest way to make gay marriage legal; in that respect, ballot initiatives currently have an abysmal track record. I question whether the referenda approach to legalizing or prohibiting same-sex marriage is constitutional. Is it legal; is it fair?

Ballot initiatives are democracy in action. (In Maine, that's democracy in which half of eligible voters actually vote, but that's for another discussion.) Democracy is the monolith Corinthian column that holds up the frieze and pediment of our national character. It connotes not only fairness, justice, and liberty, but America itself. Democracy has done so much good by us that we topple despotic regimes in its name, invade foreign countries for its spread.

But democracy suffers from a tyranny all its own. For while the sum total of all the votes on an issue will reflect the view of the majority, that opinion can be oppressive and infringe upon the rights of the minority. Direct democracy works great with small-scale issues – infrastructure, bond levying, and so forth – but when it comes to the question of rights, democracy, like all good things, can be taken to dangerous extremes. A majority slice of the population should not be able to vote away the rights of minority members by virtue of the fact that it has more people.

To temper the oppressive potential of straight, no-chaser democracy, the framers – political mixologists that they were – splashed on a fresh-squeezed blend of Enlightenment philosophy to serve up a cocktail of checks and balances they called the Constitution. Minority rights are protected in some part by a representative legislature and mainly by a non-partisan, life-tenured judiciary.

Ideally (and broadly) speaking, civil rights laws are created by legislators who enlarge and elaborate on the public view, while the judges are the enforcers who weigh the legality of a law or action against the precedents and principles of the Constitution. In reality, the judiciary is an important tool in securing a group's civil rights when the majority isn't ready or willing to do so. The classic example is 1954's Brown v. Board of Education, which desegregated schools despite regional opposition to racial integration. Had the case been made into Question 1 on a ballot initiative, it may not have passed in a state like Arkansas, for example, where the governor sent the National Guard to block the desegregation of Little Rock High School. As Linda Hirshman points out, "Imagine what the law would look like if the Brown court had waited until a majority of states were ready to pass the Civil Rights Act."

But in reality, a ballot initiative like Question 1 will never be more than a barometer of society's tolerance of gay marriage. Question 1 boils all of the complexity of the marriage-equality debate into the lowest common denominator – gay marriage: yes or no? – and ignores the nuance of the issue. Because implicit in the right to marry is not only a basic level of human intimacy but also a whole litany of benefits, tax breaks, and other perks that are not included in civil unions and are therefore denied to gay and lesbian couples.

Questions of this complexity and importance – people's rights are at stake! – should not be answered by filling in a broken arrow on a ballot. They should not be weighed against the majority opinion of gay marriage but the legal paradigms in the Constitution that govern civil rights and can only be adequately interpreted by our judiciary. If the marriage-equality debate continues to rage on the state level, then that judiciary can be the state Supreme Court presiding over states' constitutions.

If the Supreme Court were to deny gays and lesbians the right to marry, its decision would not be tyrannical. Unfortunate, yes, but not tyrannical. It would follow all the proper constitutional channels; this is how our government and legal system works. When the American people vote to deny gays and lesbians the right to marry, that is despotism in democracy's clothing – and I assure you, democracy is a sharp dresser. That is one person – or a majority of persons – determining the rights of another. It is reprehensible both constitutionally and morally (which ever you think is more important) because the question of a group's civil rights should not even be up for public debate. All other civil rights issues get decided by the non-partisan judiciary. Why should gay marriage get the hyper-partisan public treatment?

The question that remains is whether marriage is actually a right. The Constitution doesn't ask and doesn't tell when it comes to marriage, although the Supreme Court does have some precedent to work with. Loving v. Virginia (1967) struck down any law restricting interracial marriage, and the state supreme courts in California, Massachusetts, and Iowa, to name a few, have either upheld legislation that supports marriage equality or rejected bills that deny it.

The Supreme Court is supremely polarizing – just ask the people who still picket outside its doors with posters of aborted fetuses in protest of 1973's Roe v. Wade. The finality of a Supreme Court decision quashes all public debate. But in the case of civil rights, finality is what is needed. To debate whether to grant or deny someone the rights you enjoy is not a power just any citizen should have. It rests solely in the hands of non-partisan judges who have devoted their remaining days on this Earth to the study of the Constitution. To determine the rights of another is to play framer, or to play God.