Regards,
Peter H.

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.

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.

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.

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.

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.

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.

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.

But why would a legislator (aside from those strongarmed), who is against SSM vote to NOT have the issue go to the voters…

There were several of them, and one of them gave his reasons in one of the articles GPW linked a few posts back.

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.

That’s so tortured, I can’t even make sense of it. (Sorry.)

…a judge’s interpretation of the constitution could also be activism and may be overstepping his authority. Happens all the time.

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

There are remedies for that, such as impeachment.

is effectively a meaningless dismissal. “Let them eat cake”

Also, if it is true that the threshold of 75% was achieved through illegal means…

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.

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.

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.”

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.

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.

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.