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Thursday, February 5, 2004

Moral credibility.

I'll admit that I'm torn about the Massachusetts Supreme Judicial Court opinion yesterday, not because I oppose gay marriage — I happen to support it — but because the ruling so severely limits the legislature's opportunity to do anything that voters can hold them accountable for. The last thing we really needed was an incentive for people to support a constitutional amendment banning gay marriage, but in the real world, that's what the court has done.

Kristen Lombardi profiles Pulitzer Prize-winning Rutland Herald editorial writer David Moats, author of the new book Civil wars: A battle for gay marriage. (Moats attends a Unitarian Universalist congregation in Vermont, according to a Sep/Oct 2001 UU World news article.) Lombardi writes:

The Vermont Supreme Court focused primarily on the benefits that flow from civil marriage. Writing for the majority, Chief Justice Jeffrey Amestoy said that the state was "constitutionally required" to extend those benefits to same-sex couples. But the court left it up to the legislature to figure out how to do so. Amestoy, in fact, designed his ruling so it became the job of legislators to choose between gay marriage or a "parallel domestic partnership." Before ascending to the bench, Amestoy had served as a long-time state attorney general and, as such, he was a seasoned, skilled politician. He believed that involving the legislature would put a stamp of democratic approval on the Baker ruling’s outcome. "Amestoy," Moats says, "thought if you get the state to go through this huge debate, the result will have greater legitimacy."

By contrast, the Massachusetts SJC treated Goodridge as a strict civil-rights case, and the four-justice majority ruled accordingly. Thus, Moats points out, individual privacy rights played a key role in the SJC ruling. "The Massachusetts case hinges on freedom-of-privacy law," he says, which grants people the right to make personal decisions without state interference. The SJC found civil marriage a right to which all Massachusetts residents, gay and straight, are entitled. As Chief Justice Margaret Marshall wrote in her opinion, "Barring same-sex couples from ... the institution of civil marriage" — not simply from its benefits — "violates the Massachusetts Constitution." In short, the court spoke about gay marriage, and nothing else. Which has left legislators with little to debate aside from an anti-gay-marriage constitutional amendment. Unlike in Vermont, Moats says, "The legislature in Massachusetts doesn’t have as much freedom to decide what to do."

("Do the right thing," Kristen Lombardi, Boston Phoenix 2.5.04)

Two factors may help Massachusetts successfully adapt to this judicially-decreed new order, even though the legislature has almost no room to maneuver. First, as Mrs Philocrites pointed out last night as we watched the local Fox News broadcast about the ruling, the human face of this story is invariably a friendly lesbian couple with a really cute kid. It's hard to portray the opposition more favorably. What are you going to do, show a "traditional" family displaying hostility to gay people?

Second, the state's most active opponent of gay marriage — the Roman Catholic church — has much less moral credibility than it would like. Joan Vennochi writes:

"This is the most intense outreach by the church to the Legislature that I have ever seen. It is absolutely stunning," says [Marian Walsh, state senator from the Boston neighborhood of West Roxbury, a "prolife" Democrat], a lifelong Catholic, a lawyer, and a graduate of Harvard's Divinity School. "I really wish I had seen a fraction of this vigor when it came to the protection of children."

Ouch! But that's not all:

[A]s Walsh tells it, state lawmakers are being inundated by messages from those in opposition to gay marriage, some sent directly by the archdiocese. Priests she knows as friends and neighbors are being asked to contact her. She finds the extent of the effort perplexing: "The intensity, I really believe is to create a distraction from the sex scandal and closing of parishes," she says, referring to the clergy sexual abuse crisis that began in Boston two years ago and its aftermath.

Where was the Catholic Church, asks Walsh, when she took stands for social justice and against corporate welfare? "There was never this kind of outreach to me on the death penalty, even on abortion." Indeed, the first time she tried to get Cardinal Bernard Law to testify against the death penalty at a legislative hearing, she was told he did not want to ruffle prominent Catholics who support it.

("Legislator feels the heat on gay marriage," Joan Vennochi, Boston Globe 2.5.04)

The constitutional amendment is likely to fail — even though many of us in the middle would like to have seen some sort of compromise or at least some sort of legislative response — because when push comes to shove, fairness makes sense and no one really wants to hang out with a scold.

Copyright © 2004 by Philocrites | Posted 5 February 2004 at 6:12 PM

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4 comments:

Philocrites:

February 5, 2004 06:22 PM | Permalink for this comment

Dan Kennedy has some language for John Kerry to use in response to the SJC ruling and the Massachusetts constitutional convention — by John Kerry himself!

Philocrites:

February 6, 2004 11:56 AM | Permalink for this comment

What do you make of this Google search string, which brought some intrepid browser to my site? "supreme judicial massachusetts jews court members biography"

Philocrites:

February 6, 2004 03:06 PM | Permalink for this comment

The Washington Post agrees:

We support gay marriage. It is, in our view, wrong to deny to people in loving, lifelong relationships the benefits and rights that normally attach to being married. At the same time, we are skeptical that American society will come to formally recognize gay relationships as a result of judicial fiats, and we felt that the 4 to 3 majority on the Massachusetts court had stretched to find a right to gay marriage in that commonwealth's 224-year-old constitution.

Now the same majority has stretched still further, finding that the state constitution not only grants to same-sex couples a substantive right to marry but also dictates the nomenclature of the unions. When moral certainty bleeds into judicial arrogance in this fashion, it deprives the legislature of any ability to balance the interests of the different constituencies that care passionately about the question. Given the moral and religious anxiety many people feel on the subject and the absence of clear constitutional mandates for gay marriage, judges ought to be showing more respect for elected officials trying to make this work through a political process.

The judges' action has increased the likelihood of a state constitutional amendment that could ban gay unions under any name. Politicians at the federal level now more than ever will trip over one another to swear allegiance to traditional marriage and push a federal constitutional amendment to ban gay unions in all states. The case for this noxious proposal rests on the claim that judges are forcing gay marriage down people's throats in an anti-democratic fashion. In refusing to allow the people of Massachusetts to choose civil unions as an alternative, the court seems bent on playing to this caricature.

("Why not civil unions?" Editorial, Washington Post 2.6.04)

Scott Wells:

February 6, 2004 05:52 PM | Permalink for this comment

I am feeling an extraordinary amount of moral outrage, which is quite unlike my normally reserved self. If the Massachusetts SJC is exercising an activist arm to defend the interests of a publically vilified and unjustly discriminated minority, then good. Let's not pretend the legislature would offer marriage to gay people, and the Vermont-style civil union is a second-class insult. Would any heterosexual married couple trade their rights for something that ends at the state line? Because an eventual federal challege is what I think we're getting at here.

But my outrage isn't simply because I'm gay; I'm also Southern, and have seen how the public sentiment can collude -- in and out of a legislature -- to not do the right thing. I won't lose any sleep for Massachusetts's delegates, nor hear a double standard for a court that has made an unpopular decision in the North two generations after the South was torn in a very similar way.



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