Gay Groups, Democracy & the Meaning of Marriage
The more I think about the reaction of the gay groups toward the vote last Thursday in Massachusetts blocking a popular vote on a state constitutional amendment on gay marriage, the more disturbed — deeply disturbed — I become by their rhetoric and attitudes. They are gloating about denying the citizens of the Bay State an opportunity to vote on this important issue.
To be sure, I don’t believe the people need to vote on such matters. Had each House of the Massachusetts General Court (i.e., the Commonwealth’s state legislature) debated gay marriage, then passed legislation extending the definition of this ancient institution to include same-sex couples, I would have heralded the decision as I did the vote two years ago in the Connecticut General Assembly recognizing same-sex civil unions in the Nutmeg State.
What disturbs me is the rhetoric of the gay groups. They act as if Massachusetts were about to put people’s rights up to a vote. And yet the issue was not whether or not gay individuals could live freely with the partner of their choosing in the Bay State and call themselves married (if they so choose), but whether or not the commonwealth would recognize those individuals as married. It was not an issue of basic rights or fundamental freedoms, but, I repeat, of the gender composition of couples the state chose to privilege.
It’s too bad too many gay marriage advocates refuse to acknowledge the meritorious arguments of certain gay marriage opponents, instead choosing to portray them as troglodytes who wish to stand athwart history blocking progress. For many of those opponents offer strong defenses of the institution of marriage to which gay marriage advocates should take heed (as Jonathan Rauch has if marriage is an institution important enough that we should extend its privileges to same-sex couples.
Let me conclude, by returning to my general ambivalence on the Massachusetts vote. I would see it as a huge step if a state legislature, without being mandated by a court or pressured by interest groups, voted to extend the definition of marriage to include same-sex couples. But, the General Court only acted because the a number of citizens of the state presented petitions seeking to overturn a court decision. That said, the elected legislators of Massachusetts did, to some degree, consider the issue. And they answer to the citizens whom they represent.
If those citizens believe that gay marriage is an issue important enough to merit a statewide referendum, then they can vote them out of office. And those who replace them can vote again on a new constitutional amendment. But, as I understand it, given the way the Massachusetts constitution works, such a referendum could not take place until 2012 — at the soonest.
So, in the intervening five years, it’s up to those who support gay marriage and those same-sex couples who elect to get married to show that they understand the meaning of the institution they have chosen to define their relationship. For their actions, their very lives indeed, may well help make up for the empty and antagonistic rhetoric of the great majority of the most public advocates of gay marriage.
*****
ADDENDUM: I realize that, in large measure, this post reiterates points I made in my two previous posts on the Massachusettts decision (Gay Groups Cheer Defeat of Proposal to Allow Referendum on Gay Marriage in Mass and Massachusetts, Marriage, Civil Discourse & Blogging ), but it does expand on them to some extent.
I know I’ve said this before, but I’m still flabbergasted by the rhetoric on gay marriage of the gay groups (especially HRC’s lapdogs at Log Cabin) who don’t seem to see marriage as anything more than a “right” and seem to think freedom means state recogntion. Nor do they recognize that the struggle for marriage is more than an issue of such recognition, it also involves a social understanding of the institution.
But, since that is something I have long wanted to write about — long before I even knew what a blog was — indeed before Al Gore “invented” the Internet, you can expect to see many more posts on this blog on that subject.
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GPW – A lot turns on the analysis of 1 specific point, namely, whether marriage is a right or not. I just had this discussion with a close friend. We view it differently, but are totally friendly about it.
We agree a “right” is something that should never be put to a vote. Something that a voting majority can never morally take away, and it’s a horrible mistake if they try. Examples – free speech, free assembly, right to petition government for redress of grievance (the issue with the Romer amendment in the 1990s), etc.
But is marriage a right, in that sense? It’s a funny case, because it actually has 2 components:
1) Your own action. You (and your partner) making your own commitments to one another.
2) The public component. The license from the State that, in at lesat some respects, legally requires other people to change and treat you differently than before you had the license.
On point (1), your own action, marrying the person you love (and who loves you back, and who is free to commit) seems like a right. But on point (2), the obligations a State license imposes on certain third parties with respect to you, a State marriage license is more of a privilege – like a professional license, driver’s license, etc.
Constitutionally, the answer is unclear. On the one hand, SCOTUS has used language calling marriage a right, as in Loving v. Virginia (1967). On the other hand, State licenses supporting marriage are not to be found in the Bill of Rights, and they would seem to be more of a general public policy decision.
I’m sure this is nothing new to you – I’m only trying to identify the crux of some heated argument. Once a person decides marriage is a right, a lot of “moral infrastructure” kicks in where indeed, the question should never be put to a vote.
I come down on the side that a State marriage license is a public policy issue and not a right, because of such obligations as it imposes (by law, no less) on third parties. I still think there are great public policy reasons to do gay marriage. I wish the MA legislature had not pitted gay rights against voting rights, or denied us our first victory at the polls.
Comment by ILoveCapitalism — June 18, 2007 @ 9:41 pm - June 18, 2007
amazing the lengths of false logic people will go to support their subservience and second class status in America.
Comment by Kevin — June 18, 2007 @ 10:20 pm - June 18, 2007
[...] Original post by GayPatriotWest [...]
Pingback by Politics: 2008 HQ » Blog Archive » Gay Groups, Democracy & the Meaning of Marriage — June 18, 2007 @ 10:57 pm - June 18, 2007
Actually, the issue is not one of whether or not marriage is a right, or even whether or not the state can place limits on that right.
The real question is one of whether or not marriage is a fundamentally heterosexual institution.
Let me explain.
We accept the right of the state to restrict who can and cannot marry. For example, I cannot marry my niece, no matter how deeply committed we claim our relationship to be. Why not? Because the state places a temporary impediment to our marriage (she is 11, and therefore not deemed old enough to consent) and a permanent one (the consanguinity/incest restriction) that prohibit our exercise of the right. In addition, there is also the bigamy/polygamy restriction, whereby marriage is deemed to be a monogamous institution — my wife and I would not be permitted to bring in another party of either gender and mandate legal recognition. So clearly, even if marriage is deemed to be a right, state sanction of that relationship may clearly be restricted.
What, then, of Loving? If one looks at the decision, the dicta about marriage being a right is less important than the fact that the race-based restrictions imposed were fundamentally flawed from a CONSTITUTIONAL perspective — Amendments 13 & 14 clearly render illegitimate any race-based distinction between citizens. THAT is the central basis of the holding in the case, not the notion of marriage being, in and of itself, a right, for in the latter case ANY restriction on marriage would likely have to be found to be invalid (making Rick Santorum’s response to the Texas Sodomy Case accurate in regard to marriage). The esential holding in Loving is therefore not one favoring unrestricted marriage rights, but rather limited to race-based disabilities.
But if we do accept the notion that marriage is not an absolute right, and that the state does have a legitimate right to restrict marriage in some way, that then becomes a political issue to be decided by the people (as represented by the Legislature, or via a direct vote of the people). At that point, the rhetoric of rights rings hollow if the advocates of gay marriage seek to strip the people of their right and power to determine such restrictions via judicial fiat. Such a path might well lead to a situation in which we find ourselves “free” in the sense that we have “rights”, but not in the sense that we have the right to govern ourselves on issues that really matter.
Comment by Rhymes With Right — June 18, 2007 @ 11:42 pm - June 18, 2007
I thought I’d better break.
But once we concede that the issue of who is permitted to marry is a public policy issue and not a matter of “right” in the truest sense, it then comes down to how we as a society define marriage. Is it a relationship that is heterosexual by nature, at least by the standards of our society.
Now i’m not going to go into the whole issue of procreation, because it is not, strictly speaking, relevant. Yes, that may be the origin of the institution, but we have, as a society, recognized that procreation and child-rearing are not essential elements of marriage. Instead, we recognize the union of two individuals of comlementary gender as marriage, and no otehr. That is, essentially, a societal choice.
Might we choose as a society to expand the definition to include homosexual relationships. Clearly the answer is “Yes” — but such an expansion is only legitimate if it comes by the consent of the people. If imposed from without against their will, homosexual marriage cannot be viewed as legitimate by believers in government of, by, and for the people.
Indeed, the Massachusetts legislature missed a golden opportunity this past week to legitimize homosexual marriage and place it on a par with heterosexual marriage. By refusing to let the people vote (while claiming the people of Massachusetts do, in fact, support homosexual marriage), they have frustrated the ability of the people to consent to it. The defeat of the amendment Had it been defeated), would have placed an irrebutable stamp of legitimacy upon homosexual marriage in this country. The people would have spoken, and probably have set off a wave of actions approving the institution. Instead, they leave homosexual marriage as the bastard step-child of a renegade activist court.
Comment by Rhymes With Right — June 19, 2007 @ 12:01 am - June 19, 2007
amazing the lengths of false logic people will go to support their subservience and second class status in America.
Or so say the leftist gays who claim it’s “pro-gay” and “gay-supportive” to endorse and support FMA supporters and state constitutional amendment supporters.
Comment by North Dallas Thirty — June 19, 2007 @ 12:09 am - June 19, 2007
Let me say again how glad I am that Kevin has escaped the gay concentration camps of Wyoming (Cheney’s home state)… another
quarter.
Comment by ILoveCapitalism — June 19, 2007 @ 12:29 am - June 19, 2007
I’ve read the Rauch book, and am an admirer of it. I agree with his point that supporters of marriage rights for gays are far too quick to dismiss the arguments of opponents.
However, I think developments in Massachusetts are a good thing. Say what you want about the court decision, but there have been elections since it took place, and supporters of gay marriage have been elected far more often to the legislature than have gay marriage opponents. And, there was a process here, which was followed. The Massachusetts legislature was not obligated to rubber stamp the marriage amendment, and voted overwhelmingly to kill it. This means, in all likelihood, that gay marriage in Massachusetts is here to stay. That’s enormously important, and I think is cause for celebration, but not gloating.
I don’t agree with much that’s written here, but come by for the different perspective. Accordingly, I’m curious as to people’s thoughts on some Massachusetts-related questions:
1) How many controversial issues can only be legitimately resolved by a public vote?
2) Given that many of the marriage amendments not only ban marriage, but any form of official legal recognition of or protection for same-sex unions, if there is to be vote on our relationships, what, specifically should be voted on? In other words, should we accept votes on not just marriage, but civil unions, domestic partnerships, reciprocal beneficiary programs, access to courts for same sex couples, etc.? (I raise that point because I believe the Georgia amendment specifically forbids that, but please correct me if I’m wrong.)
3) Should there be public votes on whether same sex partners of public employees, and any children such couples may be raising, can receive public benefts?
4) Speaking of which, legal recognition of and protection for same sex unions is hardly the only controversial gay rights issue. Should we accept public votes on gay singles or couples raising children, either through adoption or foster care?
5) And, should there be votes on whether states can ban discrimination in employment, housing, or public accomodation against the LGBT community?
6) Finally, if there are votes on some or all of these issues, how many should we be prepared to accept? I live in Arizona, and miraculously, this state was the first ever to defeat an amendment denying same sex couples any legal recognition of or protection for their relationships. Unfortunately, I’m not in a relationship, but would like to be. If I’m still here, and I’m lucky enough to find someone, should I be prepared to accept another public vote on the legitimacy of same sex unions? If so, how many?
Break
Comment by David — June 19, 2007 @ 3:35 am - June 19, 2007
Sorry, this is my first time commenting here, and there’s a bunch I wanted to throw out there. I’m just wondering how far this “the people have to vote” argument should be extended. I’m looking forward to seeing what all of you think.
Comment by David — June 19, 2007 @ 3:39 am - June 19, 2007
On point (1), your own action, marrying the person you love (and who loves you back, and who is free to commit) seems like a right. But on point (2), the obligations a State license imposes on certain third parties with respect to you, a State marriage license is more of a privilege
ILoveCapitalism, by this logic it would seem that segregated restrooms are also not a rights issue. Certainly, one has a “right” to pee, but the installation and use of public restrooms certainly involve third parties. Would it be accurate to say, then, that use of an integrated restroom is a privilege?
Comment by Phil — June 19, 2007 @ 6:33 am - June 19, 2007
The vast majority governmental decisions are not made by public plebiscite. Why then should it be necessary for a direct vote to decide the issue of SSM? After all, only a small minority of people are directly affected by SSM. The political process has been pursued legitimately in Massachusetts and the opponents of SSM have failed to meet the rather low bar of 50 legislative votes to approve the referendum. This issue has been battled for years and the people have had ample opportunity to replace legislators they believe are on the wrong side of the issue.
Sure, it would be nice to have a referendum where the people vote for SSM and I’m sure we will someday. But the meaning of such a referendum in a “liberal” state like Massachusetts would still be poo-pooed by the homohaters were the referendum to support SSM. The process in Massachusetts was legitimate and more importantly gives the rest of the country a chance to observe that the sky will not fall if SSM is legalized everywhere.
Comment by Ian S — June 19, 2007 @ 11:12 am - June 19, 2007
David, read the post where I wrote, “I don’t believe the people need to vote on such matters.” Then, I went out to say that the legislature is the appropriate institution to enact marriage.
In this case, the court clearly overstepped its bounds. It should have dismissed the case and deferred the matter to the legislature. But, the legislature has now, albeit in extraordinary circumstances, considered the matter.
What astounded me was how the gay groups delighted in denying the people the chance to vote on this. Perhaps had they finessed the language in their releases, I might have been less outraged. Some writers, notably Dale Carpenter Andrew Sullivan — and even Ian S in the comment above, have said that they would a referendum would have given gay marriage added legitimacy.
Comment by GayPatriotWest — June 19, 2007 @ 11:46 am - June 19, 2007
Is that where they are. I wondered.
Comment by rightwingprof — June 19, 2007 @ 12:23 pm - June 19, 2007
First I want to give us a nice pat on the back for have such a good level-headed, well reasoned debate on this topic.
My quick take on the means to an end for gay marriage in Mass. – not thrilled with it. But, if the Mass. court did act beyond their perceived scope, there would have been a successful challenge to the Supreme Court, which didn’t happen. If the majority of the Mass. voters were unhappy with the court imposed marriage “adjustment”, the Mass. legislature surely would have felt the same heat that the US Senate is feeling now on the immigration bill, there would have been a massive voter revolt, as happened to the Republicans in 2006. That didn’t happen either. By their silence, and by electing politicians who favored gay marriage in the first place, the voters in Mass. have in fact given the legislature consent to let the amendment die and not waste more time on it. “The dirty deed is done, we don’t mind exactly how it was done, now let’s deal with other matters of greater concern”.
Comment by sonicfrog — June 19, 2007 @ 12:32 pm - June 19, 2007
#8 – David, my answers:
1) As I made very clear (I hope) earlier: It all hinges on what is a fundamental personal right vs. what is a privilege, made by public policy. Rights are things that shouldn’t be voted on – by definition. I say marriage has some aspects of a right and some aspects of a privilege, but in the end, the State-license part of it (at least) is more of a privilege. What do you say?
2) Again, it all rests on the analysis of what should be considered a right vs. what should be considered a public policy (or privilege).
3) Again – Are benefits for partners (you didn’t say if married or unmarried) and co-residing children of public employees a fundamental right, or a matter of public policy? I would think the latter, hence, they could legitimately be voted on if people wanted.
4) Again – Is adoption a fundamental right, or a matter of public policy? It’s getting boring typing the same thing here, and probably boring for you to read. My point is, your examples thus far are all variations of the same thing and one principle (or form of analysis) supplies the answer.
5) Again – Are employment, housing, and public accommodations fundamental rights or not? That analysis will furnish your answer, and is a topic for debate and discussion in its own right – quite apart from any gay issue. There is a “libertarian conservative” streak of thinking that says people should be free to discriminate on any basis, no matter how stupid and wrong, e.g. race – and similarly, others should be free to boycott them, picket them, etc. I personally subscribe to that view.
6) David, why should this matter or make a difference to you? How can, or why should, any public vote affect YOUR love and commitment for your partner? It can affect your legal arrangements, is all – and even then, not much. If your State denies you a marriage license or civil union: cowboy up, see a lawyer and make other arrangements. Only victims (or people desperately needy of validation) can’t be happy until the State validates their lives.
Comment by ILoveCapitalism — June 19, 2007 @ 12:40 pm - June 19, 2007
#12 – GPW, again: No, the MA legislature didn’t consider the matter. Not the matter of gay marriage. They considered the matter of whether to allow a referendum. They still haven’t taken up the issue of gay marriage proper. MA still has gay marriage by court fiat – Not by legislative consideration, or any other democratic process.
Comment by ILoveCapitalism — June 19, 2007 @ 12:47 pm - June 19, 2007
#10 – Phil – Do you have to get a State license to use an integrated restroom? Does any State issue licenses with regard to restrooms where, once you have the license, people have to make different provisions for you (in at least a few respects, by law) than they did 10 minutes before, when you didn’t have the license?
No, I didn’t think so.
Comment by ILoveCapitalism — June 19, 2007 @ 12:49 pm - June 19, 2007
Those are the ones to show the public. No, the really secret ones are in the backwoods of Idaho. Oops.
Comment by John — June 19, 2007 @ 1:01 pm - June 19, 2007
I don’t think it’s that easy, ILC. Take the example here of adoption. Can the State limit adoptions based on race or religion? What criterion is acceptable for the State to use other than whether the adoptive parents are not a danger and can care for the child? This is what the whole argument is all about and why such things as interracial marriage are brought up. Where do we draw the line and why is it when Courts have stepped in before and said the State had gone too far, such as in Loving, this considered to be okay yet not in this case?
Comment by John — June 19, 2007 @ 1:05 pm - June 19, 2007
#13 & 18 – Funny how the hysterical screeds of “gay concentration camps” from the GayLibLeft suddenly went by the wayside after the 2006 mid-term elections. Go figure.
The similarities between the silence from the GayLibLeft and the Duke 88 following the Duke LaX scandal are eerie, to say the least.
Regards,
Peter H.
Comment by Peter Hughes — June 19, 2007 @ 1:29 pm - June 19, 2007
Well the dirty lil’ secret is that Karl Rove has been quietly taking care of the problem since then. This is why we rarely hear from him nowadays. Oops. Damn. Did it again. With loose lips like this I could be a Democrat staffer for the Senate Intelligence Committee.
Comment by John — June 19, 2007 @ 1:59 pm - June 19, 2007
#14: I agree: the process in Massachusetts was legitimate and there has been plenty of time for the electoral process to change things if the voters really wanted to. I also really think it’s dangerous to put questions regarding the status of unpopular minorities to a popular vote particularly when the issue at hand has virtually no discernible impact on the vast majority of voters.
Others seem to be of the opinion that marriage is not a “right.” I’m not convinced by those arguments but even assuming marriage is not a “right”, restricting one’s choice of marriage partner based on the sex of that partner is discrimination based on sex and while permissible, such discrimination must meet the heightened scrutiny criteria. I don’t see where dictating that a man cannot marry another man meets the requirement that the discrimination based on gender “must serve important governmental objectives and must be substantially related to the achievement of those objectives.” That homohaters mustn’t be offended at the thought of two men marrying doesn’t to me represent an “important government objective.”
Comment by Ian S — June 19, 2007 @ 2:09 pm - June 19, 2007
OK John, you’re touching on the second piece of the analysis. “Second” as in, “comes after first”. If the State is going to privilege one group and de-privilege another, in a public policy matter, it needs a rational reason, lest there be an issue of partiality or unequal protection.
Let’s take adoption. Is it a fundamental right? I’d say pretty clearly not. That means yes, the State can make adoption policy if it wants (i.e., if the legislature / voters want). Now, could its policy limit adoption by race or religion? My answer: If it does, it better have a damn excellent reason.
For example, suppose the Vulcans (of Star Trek) made first contact, and dumped some babies here. Suppose there was some communicable disease they had that destroyed white people. In that case, the State would be right to forbid adoption of Vulcans to whites. Or suppose there was something about the Shinto religion that drove Vulcan kids instantly insane. In that case, the State would be right to forbid adoption of Vulcans based on that religion.
It’s an extreme, absurd example – and that highlights my point: the State’s reason shoudl be very good (or else don’t have the restriction). And that is one part of why I support gay marriage. The State marriage license is a privilege, not a fundamental right. But I believe in equal administration of privileges. The State’s official reasons for denying the license to gay couples are, in my view, not sound.
That is the question… and it’s why these issues are never easy to solve. All I’ve claimed here is: The beginning of the answer (but NOT the end) is found in studying if the thing in question is a fundamental right, or a privilege. I say a State marriage license (which I support gays having) is the latter. Hence, I’m not outraged when other people need persuasion or want to vote on it. That’s all I’m saying.
Comment by ILoveCapitalism — June 19, 2007 @ 3:01 pm - June 19, 2007
The vast majority governmental decisions are not made by public plebiscite.
But they could be.
The important thing to keep in mind in American government is that very first line of the Constitution: “We, the People”
Not,, “We, the Bureaucracy” or “We, the Executive/Judicial/Legislative Branch”. We, the people.
Which means that there is no decision that inherently MUST be delegated or on which voters cannot vote — even the decision to dissolve their own government.
The reason most governmental decisions are not put to a plebiscite is because people don’t see the need to do so, just as my boss is content to let me manage my department so she can focus on other things. But, if it comes to decisions above a certain threshold, be it financial, global, or whatever, she reserves the right to “vote” herself on it.
Gay marriage is across one of those thresholds for voters; therefore, they should not be prevented from voting on it.
Comment by North Dallas Thirty — June 19, 2007 @ 4:18 pm - June 19, 2007
#17– No, but I didn’t realize it was the license that determined whether something was a privilege or not.
State laws certainly regulate a good deal of restroom design and implementation, from the number of toilets required to the signage that accompanies them.
And, if I were black or another minority, businesses would have to make different provisions for me ten minutes after the restrooms were integrated than they did before.
“Use of an integrated restroom” still seems consistent with your criteria for a privilege, not a right. This is not a mean-spirited counterexample; perhaps it really is a privilege?
Comment by Phil — June 19, 2007 @ 4:19 pm - June 19, 2007
Yet the Constitution was never intended to give us or guarantee direct democracy. I doubt that is a system you or I would enjoy as mainly more liberal urban areas with lots of voters would run things. There is a reason why we have such things as States, Representatives, the Electoral College, etc. The United States is a Republic, not a democracy, and if we try to make it into one this large nation will not survive as regionalism will split us apart. As someone from the South I can tell you that I do not want to have everything dictated to me by the North or California. No offense to those areas of the country but we like things a little differently here, thank you very much.
Comment by John — June 19, 2007 @ 4:30 pm - June 19, 2007
#14 and #16–
I’m not an expert on Massachusetts law, but were the legislators carrying out their duties if they voted on the merits of the proposed amendment, instead of making their decision based on whether the referendum should move forward?
My understanding is that, since it’s not the job of the legislature to interpret the law, it would be inappropriate for them to base their decision on “whether this referendum should legally go to the people,” and thus they were ethically bound to vote on whether they, as elected representatives, thought the amendment would be a good law.
Comment by Phil — June 19, 2007 @ 4:31 pm - June 19, 2007
I still disagree with you ILC, but you had me at “Vulcan”.
Comment by John — June 19, 2007 @ 4:34 pm - June 19, 2007
Btw, just a reminder: the Constitution itself wasn’t adopted by the People directly, but instead through elected representatives of the various States.
Comment by John — June 19, 2007 @ 4:37 pm - June 19, 2007
NDT said:
Gay marriage is across one of those thresholds for voters; therefore, they should not be prevented from voting on it.
But the Mass. voters, en mass, have voted by their silence. If there is serious support for this amendment there will be a backlash at the polls next year. Plus it is very difficult for a politician to rescind a percieved right once it has been granted. Abortion is in this category. It’s not a right per-se, but there would be serious consequences for those who would try to ban it. Keep an eye on S. Dakota in the next series of elections to see which way the ax falls on the politicos who voted for or against the all out ban on abortion in the state.
Comment by sonicfrog — June 19, 2007 @ 5:12 pm - June 19, 2007
Yet the Constitution was never intended to give us or guarantee direct democracy.
Not as written, no.
But, as it makes clear, the people could change it to do so if they liked.
There’s nothing particularly magical about our republic; after all, we’ve changed it substantially several times, i.e. the selection of Senators, the expansions of suffrage, those sorts of things — all of which have moved us towards more of a democracy and less delegated power.
But the Mass. voters, en mass, have voted by their silence.
Have they?
Sonic, you and I live in the state that is the poster child for unrepresentative government — because of the way in which it is districted.
One wonders how quickly this would have made it to the ballot had Massachusetts a system like California’s, in which the power of the electorate to directly write law and amend its own constitution operates independently.
Comment by North Dallas Thirty — June 19, 2007 @ 6:28 pm - June 19, 2007
#24:
Why? The only people directly affected by it are gay people. The vast majority of voters are simply not affected in any quantifiable way. No straight person’s marriage will be altered in any way and there will be no change in how straight people go about getting married. No church will be forced to perform same-sex wedding just as now no church is forced to perform wedding for divorced people. Are you going to claim that because James Dobson’s delicate sensibilities might be offended at the very idea of two gay people marrying that that is reason enough to make SSM such a critical issue that it should only be decided by referendum?
Comment by Ian S — June 19, 2007 @ 6:37 pm - June 19, 2007
Absolutely. Ironically though, unless we are talking about extra-constitutional measures like revolution Article V does not include direct democratic action either and even there the People are restricted from fully changing representation in Congress.
All of these changes were within a republican/representative system and none moved us toward direct democracy. Any such move would bring us back to what the Great Compromise resolved: big state v. small states which would tear the Union apart. No, I do not support direct democracy because our Republic would not survive.
Comment by John — June 19, 2007 @ 6:50 pm - June 19, 2007
Btw, while I’m speaking mainly about the national level some semblance of direct democracy on the State and local level is a different matter. It’s impractical on the State level to have total direct democracy, but if the People want some kind of referendum system in place that’s their choice. I vigorously disagree when it comes to amending the State constitution, however. There is a good reason why amendment is difficult, to avoid passion clouding one’s judgment and joining to the constitution bad policy. It also breaks the good-faith agreement that a majority will not run roughshod over the minority. The system in place in Massachusetts is odd, but such is what was agreed to and the People have made no move to change it.
Comment by John — June 19, 2007 @ 7:01 pm - June 19, 2007
Sonic — the case could not be appealed to the US Supreme Court, as it did not involve a federal issue, but instead turned entirely on the (mis)interpretation of the Massachusetts Constitution.
And let’s be honest here — does anyone really believe that John Adams and his contemporaries intended to allow Adam to marry Steve, much less to require that it be permitted, when they drafted that document?
Comment by Rhymes With Right — June 19, 2007 @ 7:16 pm - June 19, 2007
Are you going to claim that because James Dobson’s delicate sensibilities might be offended at the very idea of two gay people marrying that that is reason enough to make SSM such a critical issue that it should only be decided by referendum?
Of course.
Because James Dobson is a US citizen and a voter, and under our Constitution, that fully empowers him to a) persuade other voters and b) use the full tools available to citizens to alter or change laws.
As an immigrant, Ian, you probably aren’t used to the fact that, in the United States, our citizens have the right to choose their own government and exercise governmental power; you’re far more used to socialist and leftist countries, in which the government tells people what and how to think. You’re used to quashing dissent, not by superior argument and persuasion, but by governmental fiat and your perceived superiority.
However, here in the United States, you are not superior; thus, you must make a persuasive case to voters, and your antireligious hate and bigotry, contempt for heterosexuals, and arrogant views about how others who disagree with you are ignorant, stupid, and supersitious and do not deserve the right to vote on issues, do not play well to them.
Rather than change your message, you look for extralegal means to impose your will upon them. And they, as the Constitution fully enables them to do, are pushing back, using the elements specifically written therein to allow the people to rule the government, instead of vice versa.
Comment by North Dallas Thirty — June 19, 2007 @ 7:16 pm - June 19, 2007
ILC # 25 – “As I made very clear (I hope) earlier: It all hinges on what is a fundamental personal right vs. what is a privilege, made by public policy. Rights are things that shouldn’t be voted on – by definition. I say marriage has some aspects of a right and some aspects of a privilege, but in the end, the State-license part of it (at least) is more of a privilege. What do you say?”
If that “privilege” and all that goes with it is granted to hetero couples to acknowledge their marriages as valid, regardless how trivial and shallow their relationships may be in reality (i.e. Brittany and the loser she divorced), then we should be granted the same “privilege.” Our relationships are JUST as valid as theirs, and much more so in many cases. Not granting is blatant discrimination, pure and simple. It should NOT be an issue for debate, period! Get it? Got it? Good ‘-)
AS to the original post — C’mon, GPW, you can do better than that — tsk tsk — I held you in much higher esteem than that until I read your low opinion about us and our relationships you just posted. Wow…
Comment by ndtovent — June 19, 2007 @ 7:47 pm - June 19, 2007
#36:
And that’s what the citizens did and they failed in their attempt to change the law. They were not actually able to have a referendum because they failed to garner enough support. You seem to think it unfair but it’s no more unfair than having to get a large number of petition signatures in order to get a referendum on the ballot here in Arizona. It’s part of the rules of the game; that an authoritarian conservative like you doesn’t want to abide by them when they prevent you from imposing your will doesn’t really surprise me.
Bullsh!t. What took place in Massachusetts took place within the legal framework of the Commonwealth – nothing “extralegal” about it. The people, through that framework, have spoken.
Comment by Ian S — June 19, 2007 @ 7:58 pm - June 19, 2007
#38 – “The people, through that framework, have spoken.” AMEN, Ian!
Comment by ndtovent — June 19, 2007 @ 8:06 pm - June 19, 2007
Where, ndtovent, do I express a low opinion of gay relationships?
This post is consistent with my past pieces on gay marriage — and where I have consistently noted that gender difference has been an essential aspect of marriage for as long as there has been marriage.
I don’t see it as discrimination not to call same-sex unions marriage since the definition of marriage, even in societies recognizing same-sex unions, has long turned on the union of partners of different genders.
Comment by GayPatriotWest — June 19, 2007 @ 8:37 pm - June 19, 2007
The sanctity of marriage should be reserved for those – like Vera – who use it most often.
If Vera makes one more stroll down the aisle – it will have to be on a segway.
As Vera was once told by her dear friends, the ‘Galloping Gabor Girls’ (Magda, Zsa-Zsa, and Eva; an astounding 19 marriages between them!); “Darling – the best place to meet men is at a wedding- especially your own”!
As for all this gay marriage business:
Vera is strongly ‘states rights’ when it comes to marriage of any kind (much like assisted suicide, the death penalty and anything involving conscripting those ‘white rapper-skate boarding-surly teenagers’ hanging around the local 7-11) and believes different values are reflected in different states (try passing a right to carry a concealed weapon in a blue state-Vera has to hide her pearl handled automatic in her girdle!).
Vera has only one firm stand on the marriage debate: No inter-marriage between relatives (look how well that turned out for the Royal Family), and anyone seeking a trophy spouse has to date Paris Hilton for 6 months before being eligible to marry anyone. Regardless of your sex.
Should the good folks in Massachusetts ever get a chance to have their say in the matter (funny how the only state that allowed gay marriage via the judiciary is a state where the judges are appointed, not elected) and actually get to vote on the issue, Vera has no doubt the good people of the Gay-Bay-State will embrace it, so long as no gay democrat is ever allowed to marry a gay republican – imagine, a gay version of the Mary Matlin – James Carville nuptials? You’d need a metal detector just to screen the guests at the wedding!
As for anyone planning a gay wedding this summer in P Town (please, no rainbow cumber buns and no leather pants – it’s a wedding, not a biker run) please let Vera know, as she is taking the Gabor girls advice to heart in her search for husband #5.
Or is it #6?
Cheers!
Comment by Vera Charles — June 19, 2007 @ 10:07 pm - June 19, 2007
I take it that you mean procedural means instead of “extralegal” because what happened in Massachusetts was well within the laws and system established by its constitution. That aside, how is this any different than what a minority has done in the Senate by blocking a vote on the immigration bill? All 100 of them represent the People of their respective States, yet a minority of their number are blocking the will of the majority through parliamentary procedure. You cannot prove that this is the will of the People since no plebiscite has occurred on this issue and everyone knows that polls can be skewed and are not sanctioned by the Constitution anyways. If you are going to remain consistent with this reasoning you’ve presented I truly am at a loss how you cannot condemn that minority for what they have done. Oh and that the Democrats have excelled in doing likewise in the past is irrelevant to the matter at hand for both parties have done this.
Comment by John — June 19, 2007 @ 10:38 pm - June 19, 2007
Vera, thanks for the laughs! You’re great and I agree.
Comment by HardHobbit — June 20, 2007 @ 12:27 am - June 20, 2007
amazing the lengths of false logic people will go to support their subservience and second class status in America.
Amazing the lengths of false logic people will go to to rank themselves with “second class status” and “victimhood” while the rest of us go on with our happy lives.
Have fun being miserable (and alone). Or something.
Comment by ThatGayConservative — June 20, 2007 @ 1:08 am - June 20, 2007
It’s part of the rules of the game; that an authoritarian conservative like you doesn’t want to abide by them when they prevent you from imposing your will doesn’t really surprise me.
LOL….only you, Ian, would find it “authoritarian” that I support the right of the people to vote on issues when they have clearly expressed that they wish to do so.
What you are afraid of is the fact that a vote that was outside of gerrymandered districts and over flagrantly-bribed politicians was one you would have lost.
But instead of asking why you would lose and doing something to change the fact, you avoid it — because you aren’t ready to give up antireligious bigotry, contempt for heterosexuals, arrogant views about how others who disagree with you are ignorant, stupid, and supersitious and do not deserve the right to vote on issues, your belief that anyone who disagrees with you should have their name and address published and be harassed, and the innumerable other antisocial behaviors that you display here and cloak under the guise of “homosexuality”.
I take it that you mean procedural means instead of “extralegal” because what happened in Massachusetts was well within the laws and system established by its constitution.
Bribing legislators for votes is not allowed under the Massachusetts Constitution.
That aside, how is this any different than what a minority has done in the Senate by blocking a vote on the immigration bill?
Not quite.
Supporters could muster only 45 votes to limit debate and speed the bill to final passage, 15 short of what was needed on the procedural maneuver. Fifty senators voted against cutting off debate.
In short, they couldn’t even get a SIMPLE majority of the Senate to support pushing the bill forward.
And there is a lesson in that, John; that even something that seems inexorable can be turned back if one is willing to stand up, stand on principle, and wait for others with ulterior motives to smash themselves to bits.
The principled conservatives in the Senate didn’t need to use tricks. They got a majority to support them, and they did so by sticking to their guns, even overcoming the leftist manipulative and legislative tricks that Harry Reid and Teddy Kennedy tried to pull.
But when gays are like Ian, they have no choice but to use tricks and bribery — because they can’t convince voters. In Arizona, they had to closet themselves and avoid any mention of gays to defeat the amendment offered, using the argument that passing it would prevent senior citizens from maximizing their Social Security benefits.
Comment by North Dallas Thirty — June 20, 2007 @ 1:55 am - June 20, 2007
Some good points. A healthy and lively discussion.
First, once I’m fortunate to find someone to settle down with, we and those closest to us, will know how important the relationship is. We won’t need a piece of paper from the state to validate it or tell us what it means. The only issue is will whatever state we happen to live in allow us to legally function as a couple. I know there are contracts that exist, and as long as both our families are supportive of us, I suppose we can function with them, even in an amendment state.
The question of whether marriage, recognition of unions in any form, protections for them, public benefits, adoption, foster care, etc., are rights or privledges (I know I mispelled that) is an interesting one, but even if we consider them privledges, I have a hard time – in my very biased opinion – finding a rational basis for the state doling them out to some people and not to others. And that is a key test, rational basis, isn’t it?
Finally, let us celebrate tonight too, because the assembly in New York State, without court direction, has approved gay marriage. Yes, sadly, the Senate leader there is quoted in news articles saying he won’t allow the bill to come up for a vote, but this is still an important step. New York, I believe, is now the second state where at least one house of a legislature has voted in favor of marriage equality. Through electing lawmakers and a governor – the next time he comes up for election – the people of New York State will have a voice in where the issue goes from here.
Comment by David — June 20, 2007 @ 2:23 am - June 20, 2007
True, yet all we’ve seen on this thus far are unsubstantiated accusations of this having occurred.
Very good! I had quite forgotten that they only mustered 45 votes to end debate on the bill. Okay, in that case since both parties have used this before in the past to block legislation they disagree with, and will do so again, let’s generalize this then about the filibuster rule.
Good. Consistency. I will remember this the next time the GOP uses the rule to block legislation you disagree with.
Comment by John — June 20, 2007 @ 5:58 am - June 20, 2007
Please remind me – which was the first?
(MA’s legislature voted against marriage democracy, not for marriage equality. CA’s legislature voted for marriage equality, but, as a fund-raising ploy for Democrats – fully counting on Ahnuld to veto it. CT and other legislatures voted for civil unions. You must be thinking of one I’m forgetting.)
Comment by ILoveCapitalism — June 20, 2007 @ 7:38 am - June 20, 2007
ILC, it was Connecticut.
Re: Massachusetts. Maybe I’m being totally dense here, but I’m really trying to understand this. I do understand that the vote taken there was not a vote for marriage equality. Fair enough. And further, I understand that some legislators may have been strong armed, “bribed,” or whatever to change their vote, enough so to get to the 3/4 threshold. I haven’t seen the evidence, but willing to concede the point since this political garbage happens all the time. This still means that at least 70% of the legislators voted to not have the issue go to the voters. Now I suppose some of the legislators who support SSM would still vote to have the issue go to the voters. But why would a legislator (aside from those strongarmed), who is against SSM vote to NOT have the issue go to the voters, since that would have been the only way at that point to repeal SSM?
So, ILC, I understand your point of exactly what the vote was for. And now it appears that a vote for marriage equality in the legislator is moot. But it seems clear to me that if a vote was taken, at least 70% of the legislators would approve SSM.
Like Dan and others, I would have preferred that the issue originated in the legislature. But things don’t always happen that way. Like it or not, people will bring what they believe are injustices to the court, and some of these matters do end up to a state Supreme Court. And the judges have to decide the issue on the interpretation of the state’s constitution as opposed to being activist (or more fairly, not doing their job) and decide that even though their interpretation of the constitution and laws prohibits the injustice that the matter still should go to the legislature. Now, of course, a judge’s interpretation of the constitution could also be activism and may be overstepping his authority. Happens all the time. There are remedies for that, such as impeachment.
Also, if it is true that the threshold of 75% was achieved through illegal means, then I suppose there are procedures to determine this to be the case if there is sufficient evidence. I gather though this is tough when a supermajority is required and even without political shenanigans, an overwhelming majority would still hold.
Anyway, like it or not, the procedures were followed, and SSM remains the law in Massachusetts. If it results in a backlash, so be it. As far as I know, there isn’t a law against such a thing. We’ll deal with it, and maybe learn from it. Or maybe not.
Comment by Pat — June 20, 2007 @ 10:21 am - June 20, 2007
#41 – Vera darling! Welcome back! This board has suffered immensely without your sterling wit and radiant presence.
Good luck on finding Hubby #5 (or #6). I bet you are wonderful housekeeper – because as Zsa Zsa used to say, “when I leave my husband, I keep the house.”
And yes – Matalin/Carville are proof that mixed marriages really do work. Though why Mary would date outside of her species is something I really can’t figure out. Luckily enough, she has enough brains for both of them. But I digress.
As far as marriages go, I have to agree and say that the state legislatures should be the ones to decide. A lot of activists seem to forget two vital parts of the Constitution: Amendment 10 which states that all powers NOT delegated to the federal government are reserved to the states and the people respectively; and Article IV’s “full faith and credit clause.”
Regards,
Peter H.
Comment by Peter Hughes — June 20, 2007 @ 10:36 am - June 20, 2007
The 10th Amendment has been effectively neutered by past rulings of SCOTUS and will remain that way until the Court changes it’s stance. Pity really. Of course as we saw with the despicable Kelo decision, not even the plain text of the Constitution is enough to restrain activist judges sometimes. As for the “full faith and credit clause” that hasn’t been forgotten and as I understand it the next move in Massachusetts is to have the 1913 law then-Gov. Romney cited to prevent non-residents from marrying if they do not qualify in their own states, repealed. They will probably be successful though it remains to be seen. If they are, the challenges to DOMA will explode across the nation.
Comment by John — June 20, 2007 @ 10:44 am - June 20, 2007
#51 – John, you are right about Kelo v. New London; however, there have been other challenges to state laws appealed to SCOTUS and they have either declined to hear them or ruled in favor of the state.
Give us one more good strict constructionist on the High Court, and we’ll see an end to legislation from the bench. I have a feeling that if the SD abortion law ever gets appealed to SCOTUS, it will be upheld.
Regards,
Peter H.
Comment by Peter Hughes — June 20, 2007 @ 11:03 am - June 20, 2007
#49 – Pat, we’ve been over this – what you’ve got there is a lot of inference. Pretty tortured.
There were several of them, and one of them gave his reasons in one of the articles GPW linked a few posts back.
That’s so tortured, I can’t even make sense of it. (Sorry.)
Now you’re talking. That’s the point.
The Court’s job is to REVIEW acts of the Legislature (and of lower courts). Not to make new legislation. Not to order new legislation. Very simple, really. But so poorly understood in today’s ridiculous, corrupt political culture, that
is effectively a meaningless dismissal. “Let them eat cake”
I don’t know and I don’t care. That has never been my point in all this.
My points are:
(1) the MA legislature never voted for marriage equality, only against marriage democracy;
(2) since a State marriage license is in the end a privilege (not a right) or a matter for public policy, we should expect and even desire legislatures to vote in gay marriage – or failing that, referendum voters;
(3) the MA legislature denied us such a vote;
(4) It matters. Why? Because
(5) Winning via dictatorship of the judiciary is wrong. Which means – among other things – that it stokes the FMA / MPA backlash none of us want.
Comment by ILoveCapitalism — June 20, 2007 @ 11:10 am - June 20, 2007
P.S. I just thought of an excellent reason an anti-SSM legislator would have voted NOT to send the amendment up: Because he feared it would lose. (And indeed, the measure was behind in the pools.) Because he thought it more important to deny us the clear election victory. Which he has now done.
Comment by ILoveCapitalism — June 20, 2007 @ 11:17 am - June 20, 2007
sorry, “polls”
Comment by ILoveCapitalism — June 20, 2007 @ 11:18 am - June 20, 2007
Sorry for the run of comments, but I have to say this:
Our side (pro-SSM) should be aligned with voting rights. On principle. Not frightened of them. Especially knowing that a majority in MA now support SSM, our side in the MA legislature should have either taken up gay marriage and approved it, or at least voted to send the anti-SSM measure to the voters for official, democratic and ignominious defeat.
Comment by ILoveCapitalism — June 20, 2007 @ 11:31 am - June 20, 2007
ILC, I’ll fix up the long sentence that didn’t make sense. It took a few minutes just to make it that clear, and will need time to rewrite or explain it to make sense and to convey my point. And I’ll respond to your other points. Have to take care of a few things, and will try to write later.
Comment by Pat — June 20, 2007 @ 12:58 pm - June 20, 2007
# 35 wrote
Sonic — the case could not be appealed to the US Supreme Court, as it did not involve a federal issue, but instead turned entirely on the (mis)interpretation of the Massachusetts Constitution.
I haven’t followed the Mass. proceedings closely and was blathering off the top of my head. I would think you’re correct as DOMA would supersede the Mass. forced SSM legislature on the federal level.
And let’s be honest here — does anyone really believe that John Adams and his contemporaries intended to allow Adam to marry Steve, much less to require that it be permitted, when they drafted that document?
That is silly. First off, Adams was in England in 1987 and didn’t participate in the drafting of the constitution, drafting was done mainly by Madison with some Hamilton thrown in. And the Constitution was not meant to prohibit the rights of man, but unify the concept of, and at the same time prohibit the power of government. No, they didn’t address the concept of gay marriage or unions, it wasn’t on the radar and would have been silly for anyone to bring up. The nation, such as it was, had become unmanageable under the Articles of Confederation, with each nation-state acting in its best interest over any greater good for the collective as a whole. The Continental Congress of 1787 didn’t address many issues that were pertinent for the time, such as women’s suffrage or the future of slavery. They were trying save a dying union of state governments, not create new ones for men and men.
Comment by sonicfrog — June 20, 2007 @ 1:33 pm - June 20, 2007
#58 – “First off, Adams was in England in 1987.”
Gee, so was I. Darn, I missed seeing him.
Sorry, sonicfrog. Couldn’t resist. Nothing personal.
And yes, your presentation is correct. James Madison is known as “the father of the Constitution” (and Bill of Rights, after Jefferson complained). However, John Adams did have a small part to play in the drafting prior to being sent to England as an ambassador.
In a celebrated letter to her husband, Abigail Adams (one of the first women to hold the right to vote in the Commonwealth of Massachusetts under British rule) urged him to “remember the ladies” when it came time to drafting the Constitution.
John Adams responded: “Be assured we know better than to compromise our masculine ways of life.”
I can only imagine what Abby’s response was. Probably something along the lines of “Here’s the couch, you moron.” She was a regular spitfire, according to historians.
Regards,
Peter H.
Regards,
Peter H.
Comment by Peter Hughes — June 20, 2007 @ 2:46 pm - June 20, 2007
Our side (pro-SSM) should be aligned with voting rights.
While I think that would probably have played out to our side’s advantage in Massachusetts, I’m not sure that is a strategy that would work in most parts of the country.
Why not adopt an even _more_ populist rhetoric, to wit: the people of Massachusetts _already_ have the right to vote on same-sex marriages, through their actions and their pocketbooks. If a Massachusetts citizen believes that a same-sex marriage is right for him (or her), they can go out, pay for the license, and get one. If a Massachusetts citizen is opposed to same-sex marriage, they can make this clear by not entering into one.
The current system allows each Massachusetts citizen to act according to his or her conscience on this matter, and other states should follow this model as a matter of principle. The MA state legislature voted against a referendum that would have _removed_ the right to choose whether or not to have a same-sex marriage. The referendum was anti-populist, and voting against it was a vote to leave the power in the hands of the people.
Comment by Phil — June 20, 2007 @ 8:19 pm - June 20, 2007
Phil, that again assumes marriage is (1) a purely individual action, and (2) a fundamental right, not a matter for public policy (i.e., a privilege). Both those premises are false. The whole point of a State marriage license, as distinct from promises exchanged purely between 2 individuals, is to to compel other people (at least in some financial and legal contexts) to recognize a certain relationship and change their behavior with respect to it. Your counter-analysis here is trite.
Comment by ILoveCapitalism — June 20, 2007 @ 8:32 pm - June 20, 2007
(I should have phrased it as, (1) an action purely between 2 private individuals.)
Comment by ILoveCapitalism — June 20, 2007 @ 8:34 pm - June 20, 2007
ILC,
A marriage compels the state to recognize the relationship differently and change its behavior. What aspects of marriage laws require individual private citizens to change their behaviors?
I’m sure there are some, but I can’t for the life of me think of them. These behavioral changes would seem to be largely cultural norms, like when your parents allow you to sleep in the same room now that you’re married. (Like I said, I’m sure there are some, but are they really significant? It would help if you provided some really onerous examples.)
It seems prudent to make a distinction between state actions and individual actions, because the state has an obligation to treat its citizens fairly, and the bar for discriminating against a particular category of people must be very high.
Putting same-sex marriages up to a popular vote is morally no different than putting individual marriages up to a popular vote. In the majority of both cases, you are voting on other people’s marriages, and the impact on the couples involved is so much greater than the impact on the citizens doing the voting that it’s almost a farce.
Comment by Phil — June 20, 2007 @ 8:52 pm - June 20, 2007
1987???? Shit. Shit! That guy lived a long time:-)
I meant 1787!!!! 7. 9. I always find a way to write the wrong number. This is why I suck in math and never became an accountant.
Adams did write a document “A Defence of the Constitutions of Government of the United States of America” that held some sway with the members of the CC of 1787, and his work on the Mass. constitution was considered to be very influencial, but your statement “John Adams did have a small part to play in the drafting prior to being sent to England as an ambassador” doesn’t jive with the events that led up to the decision to scrap the Articles of Conf., since JA was abroad when that decision was made, and the decision to do so was a secret affair, since it was almost certainly illegal under the tennants of the Articles in the first place. I’m a HUGE Adams fan, and though I would never claim to know all as that would make me a liberal, I’m fairly certain I’m correct here.
PS. Yes I had to look up the name of the A Defence of the Constitutions of Government of the United States of America document! I love history, but my memory sucks when it comes to fine details.
PPS. The best Abigale letter was the one where she tore Jefferson a new oriface over his slandering through the pen of Thomas Calendat(sp) of JA during the election of 1800.
PS. It wasn’t just Jefferson who wanted the B. o R., Virginia, Hew York, and North Carolina required the B o R as a condition for ratification.
Comment by sonicfrog — June 21, 2007 @ 2:23 am - June 21, 2007
#53, ILC. There may be a lot of inference in my argument, but in a rational world, I maintain that mine makes sense. A legislator is against a policy. The actual policy does not come for a vote. Instead, a procedural issue on the policy comes up for a vote. By voting no, the policy will happen. By voting yes, there is a chance the policy won’t happen. Which makes sense for the legislator? I honestly don’t think it’s tortured logic to assume the legislator would vote no on the procedural issue. So maybe we’ll have to agree to disagree on this point. Of course, we are dealing with politics here, so we can throw rationality (and principle) out the window. If that’s your point, then we can at least somewhat agree.
I think I found the link that you referred to. It mentioned several who changed their vote, and the governor made the point that these persons were not strongarmed. I’m not sure that I believe that. But who were these people? Were these people for SSM, but thought the vote should go to the people anyway? The article did cite one specific legislator who changed his vote to not have the people decide. But the article did not even cite if he was for or against SSM. All it said was that he was originally for having the people decide the issue.
So I still believe that if the legislature did vote on SSM, it would have overwhelmingly passed. Even in the irrational world of politics, I don’t think my conclusion is a stretch, let alone “torture.” But I’ll agree with you that it would have been better if SSM was voted on, and see what the vote on that issue was.
That’s so tortured, I can’t even make sense of it. (Sorry.)
Let me try to explain my point here. Suppose an issue goes to a state supreme court, and a judge (or justice) is to decide on this issue. Now also suppose that this judge “correctly” interprets the constitution generally when making decisions. But now an issue comes up, and according to this judge’s interpretation, he believes the current law is unconstitutional. However, by making the ruling, it forces the law to change to correct the injustice. But instead, the judge votes the other way, because he believes that despite what the constitution says, the issue should still go to the legislature or the voters, and whatever they decide is okay. As an example, suppose there was a state law that said everyone has the right of free speech except those with Irish/Scottish/Syrian ethnic background. So I bring this issue to the courts. Should the court rule against me, because it’s the job of the legislature to initiate changing the law?
SSM is brought to the Massachusetts Supreme Judicial Court. Now, for sake of argument, suppose the constitutionally “correct” ruling is that barring same sex couples from marrying is unconstitutional. What should the judges’ ruling be? Should the judge say that the law is unconstitutional, but I don’t care, the legislature should decide? I called this activism in the post above, but perhaps it’s more correct to say that the judge simply abandoned his duty.
Now, I did make a big assumption here, and that was the Mass SCJ correctly decided the issue. Further, I have never read their constitution and don’t plan on doing it. But, right or wrong, it appears that long standing practice of supreme court rulings also involve other legal stuff that I’m totally clueless on, to make the decisions. But whatever the standard is used now, the question is did the Mass SCJ apply the same standard on the SSM issue that it has traditionally done on other issues? If the answer is yes and one is okay with that standard, then their ruling was correct. If the answer is yes, but one is not okay with that standard, then the issue, obviously, goes way beyond the issue of SSM. If the answer is no, then I can understand the argument that the SCJ overstepped their authority. I’m not sure how one can show that the SCJ applied different standards to this ruling over others, but then again, I don’t quite understand legal and constitutional complexities.
The Court’s job is to REVIEW acts of the Legislature (and of lower courts). Not to make new legislation. Not to order new legislation. Very simple, really. But so poorly understood in today’s ridiculous, corrupt political culture, that
Yes, I agree with the role of the legislature and the courts. But I’m not sure about the “simple” part. In the SSM matter, should the court, with their decision, struck down ALL marriage in Massachusetts first. Then let the legislature decide whether or not they want to even introduce any new marriage law. I suppose that if the SCJ did that, they wouldn’t be “legislating” from the bench, but it would seem rather impractical too.
There are remedies for that, such as impeachment.
is effectively a meaningless dismissal. “Let them eat cake”
Judicial activism has been an issue for a long time. But for whatever reason, not enough people have been concerned enough to do anything about it, aside from voting people in who will supposedly only appoint non-activist judges. And, of course, on specific rulings, people disagree on whether the ruling was activism or not. Now stating impeachment as a remedy may be meaningless, but that’s because not enough people see a real problem yet. If and when enough people speak out about it, it won’t be meaningless any more.
My points are:
(1) the MA legislature never voted for marriage equality, only against marriage democracy;
I agree with the first point. The point is now moot, but I am virtually certain that the current legislature would have overwhelmingly voted for SSM. Again, it would have been better if there was such an actual vote. The second point is technically true. But the legislature doesn’t let the people vote on 99.99% of the issues. Perhaps they should have on this issue. But the procedure was followed and the motion failed. But democracy hasn’t failed yet in Massachusetts. Because even if a majority of voters are against gay marriage, they will again have an opportunity to vote for legislators that will support the people’s right to vote on this issue. Even with the heavy gerrymandered districts, only 25% of the legislators are needed for this to happen. Maybe it’s a shame that these persons will have to wait at least another 3 years to have the opportunity. All I can say is welcome to the world of those of us who have been waiting longer for what we believe is right.
(2) since a State marriage license is in the end a privilege (not a right) or a matter for public policy, we should expect and even desire legislatures to vote in gay marriage – or failing that, referendum voters;
I’m not so sure about the matter of have different expectations between a right and a privilege, because denying a privilege unjustly to me, is as bad as denying a right. Since my legal knowledge is weak, I may be way off-base on this point. In any case, I would desire that legislatures vote in gay marriage, as opposed to the judicial route.
(3) the MA legislature denied us such a vote;
True, they did. But the law allowed such. Again, the people can remedy that if they desire.
(4) It matters. Why? Because
(5) Winning via dictatorship of the judiciary is wrong. Which means – among other things – that it stokes the FMA / MPA backlash none of us want.
I’m just not so sure that it was the procedure itself that has caused or will cause further backlash. I think the state constitution votes happened because of gay marriage (and civil unions) itself, and not because of the way it happened. When it started becoming clear that civil unions and gay marriage were a real possibility, that’s when the backlash occurred. Congress and Clinton didn’t pass and sign DOMA because of judicial activism, or because they thought previously that SSM was okay and had a change of heart. It was because they were always against SSM and they saw SSM as a real possibility. I doubt many people that voted for state amendments banning gay marriage said something like “you know, I am against SSM, but I would have been okay with it in my state had it gone through the legislature. Because judicial activism prevented the legislature acting in another state, I must now vote for the amendment, while otherwise I wouldn’t have.” Maybe this is another stretch with inference, but that’s the way I see it.
Anyway, I hope this made some sense, even the parts you disagree with. I apologize for anything that still doesn’t make sense. I just find that some issues are hard to convey the way I really want to by writing it out.
Comment by Pat — June 21, 2007 @ 11:51 am - June 21, 2007
Point well taken, sonicfrog. I would love to read Abby’s letter ripping Jefferson a new one. If you ever get a chance, read her historical biography “Those Who Love.” You’ll see her in a whole new light.
Regards,
Peter H.
Comment by Peter Hughes — June 21, 2007 @ 12:19 pm - June 21, 2007
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