Thursday, February 5, 2004
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