Friday, September 16, 2005

Massachusetts Gay Marriage: the Wrong Way and the Right Way

In May 2004,the Massachusetts Supreme Court made gay marriage the law of the land. By a handful of votes, the court undid centuries of law and custom. In fact, anticipating this possible ruling, the state legislature had voted two months before for a constitutional amendment banning gay marriage. This is exactly the kind of judicial activism that mobilizes conservative and moderate voters. When conservatives say that arrogant elites from the coastal cities are imposing their views on everyone else, this is what they are talking about. I believe that this issue tipped the 2004 election from a close race to a Republican walk. Deciding major social issues through the courts is wrong 99% of the time. Debating social issues is what we have legislatures for. This includes the inevitable compromise and “sausage making” that legislatures must do, and often must do behind closed doors.

Now the Massachusetts legislature has voted again on a moderate constitutional amendment, which would ban same-sex marriage, but create very similar civil unions. To the surprise of many, the amendment failed, 157 to 39. Part of the failure was because conservatives voted against it as too much of a compromise. They are working an amendment for the 2008 ballot, which would ban same-sex marriages with no civil union softener. The main reason the amendment failed this time, I think, is because the moderate center of the legislature didn’t have the stomach for the ban. They think marriage really is about a man and a woman uniting for life, especially to raise their children. But they also think that letting the small number of homosexuals who want to marry wont really hurt the commonwealth of Massachusetts. The great majority of people can still marry and live in the usual way even if a few do it another way.

Now, this is not the way it will play in all states, or even in most states. If, for example, the Kentucky legislature were forced to vote on a constitutional amendment to keep prohibiting gay marriage, I am sure it would pass, and would be a popular measure in the state. The fifty nifty states are different from one another, and a good thing, too. Moreover, public opinion, even in the most extreme states, changes over time. Massachusetts was very hot about gay marriage when it was first imposed by the court, but the ardor is cooling. I think it likely that, when it comes time to certify the proposed total ban over the next few years, there may not be enough votes in the legislature to even get the amendment on the ballot. Time and democratic competition will tell.

I believe that we are all better off when these changes are debated, compromised, and enacted in the legislature, not in the court.


Anonymous said...

I think that traditional conservatives and some liberals believe in a strong legislature would agree with you. From what I heard about the whole John Roberts affair part of what made him more palatable to the left is that they believe he supports a strong legislative branch.

Gruntled said...

About John Roberts, I was very interested to see that he says that a "right to privacy" really is implied in the Constitution, as Griswold v. Connecticut found. This is the real foundation for Roe v. Wade. When talking about abortion, therefore, liberals have been for this right, while conservatives claim that there is no clear intent in the text to protect a general right to privacy. When talking about civil liberties versus law and order, however, the roles are usually reversed. I think this puts Roberts in the middle.

Anonymous said...

Regarding "Massachusetts Gay Marriage," I have many thoughts, most of which
stem from my legal background, particularly interning in the Vermont Legislative Counsel for the House and Senate Judiciary Committees during the
enactment of the Civil Union Law in that state, which was passed pursuant to Judicial... "heavy encouragement," we shall say. My thoughts regarding Gay Marriage are varied and diverse and sometimes divisive (believe me, I can equally irritate both sides of the argument), and would bear a lot of fleshing out in light of the blog; suffice to say, however, that the general comment that such measures should be solely the purview of the legislature, and not the judiciary, is arguably about as backward as suggesting the Brown vs. Board of
Education decision had little merit because it was rendered by the Judiciary Branch as opposed to the Legislative. You may note that the Mass. Supreme Court
decided the case primarily on State Constitution grounds (though it did state
its belief that the U.S. Constitution differed little on this issue), which is
as much the purview of the Mass. Supreme Court as the Bill of Rights is the purview of the U.S. Supreme Court. Please do not misunderstand, however --
the homosexual rights movement is similar to, but distinct from, and qualitatively different than, the general civil rights movement in this country.

As an aside, regarding Roberts, a review of his testimony will quickly reveal he won't be voting to overturn Roe anytime soon, and that he supports the decisions leading to it. But, shhh! Don't tell the Republicans.

Anonymous said...

As a further note regarding "gay marriage," I note that many people the country over would support "civil unions" or other types of arrangements that have the rights of marriage but are not called "marriage." This fact has been brought to light several times, and was brought to light in the Mass. situaiton.

I want to note 2 things about this issue:
1. The marriage protectionists who prefer this option have simply chosen To-may-to over To-mah-to because there is no substantive or qualitative difference. In fact, Mass. intended to pass a "civil union" that would apply everywhere in its law that the word "marriage" applied -- meaning complete pairity. (The Court of course held that different in name was different enough to defend the Constitution -- apparently based around the same logic of "separate is never equal" that led the U.S. Supreme Court to overturn Plessy.)

2. The hard-liner gay movement folks arguing that "civil unions" don't go far enough are, likewise, arguing To-may-to vs. To-mah-to. Additionally, in my view they are cutting off their collective noses to spite their faces. Any real social change happens slowly and in stages, and rejecting the baby steps society takes to get where it's going may hurt their movement in the long run.

Gruntled said...

I said that the legislative route is superior to the judicial route to solving social problems 99% of the time because I was thinking of Brown vs. Board of Education. I don't think anti-black racism is a model for other social problems, but is the great exception -- even original sin -- of American culture. It has introduced a whole series of irrationalities in our law and politics. Legal racism had to be cured judicially after Plessy v. Ferguson became combined with massive resistance to desegregation. Nothing else in American politics is like it -- not even sexism.