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Thursday, November 9, 2006

Constitutional convention ends; no gay marriage vote.

Religious Coalition for the Freedom to MarryAs expected, the Massachusetts constitutional convention recessed this evening without voting on a petition from approximately 170,000 citizens to place a constitutional amendment banning gay marriage on the 2008 ballot. If the legislature doesn't vote on the initiative by the last day of its current session, next January 2, the petition is dead and the anti-gay marriage coalition would have to start all over again. If their turnout today is any indication, their enthusiasm for what would be a three-year uphill battle against the growing acceptance of gay marriage in Massachusetts is clearly waning.

Opponents of gay marriageOpponents of same-sex civil marriage argue that "the people," not the courts, should decide on significant changes to the law and to social convention. I am not entirely unsympathetic to this view, although I happen to believe that marriage is good for gay and straight couples alike as well as for their larger community. A wise court finds a way to enlist legislative support for expansions of constitutional liberties — as the Supreme Courts of Vermont and New Jersey have done concerning the rights of same-sex couples. But the Supreme Judicial Court of Massachusetts went around the legislature in changing marriage law and left legislators with no choice but to comply or amend the Constitution (which they are naturally reluctant to do), leaving us caught in an ongoing tug-of-war between populist demagogues on the right and high-minded procedural maneuvering on the left.

Supporters of the Commonwealth's unique court-mandated marriage equality argue that the constitutional rights of a minority should never be put to a popular vote. That's a strong line, too. But it's not an argument that strikes most Americans as persuasive when it comes to gay marriage — so the fact that New Jersey's Supreme Court followed Vermont's lead is a good sign for future progress for same-sex couples. Future advances in marriage equality will come more gradually than in Massachusetts, through extending civil marriage rights in the form of "civil unions." For a while, anyway. Eventually, as people realize that legally binding unions really are extremely similar to "marriage" — and as people realize that they are attending "weddings" and considering same-sex couples they know as "married" — the need for a parallel legal term will fall away. But I don't see a way to skip the social transformation that still needs to take place before most Americans are really ready to accept it.

The Massachusetts legislature did the right thing by not putting the rights of a minority population up for a popular vote, but hopefully other state legislatures will not be put in the bind they've been in. Supporters of gay marriage in other states are left with the important but difficult work of building popular acceptance as a foundation for legal and constitutional protections; without that, courts can't protect people from a democratic backlash.

Here, by the way, are my pictures from today's competing rallies outside the Massachusetts State House.

Copyright © 2006 by Philocrites | Posted 9 November 2006 at 8:54 PM

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Bill Baar:

November 10, 2006 08:37 AM | Permalink for this comment

As long as Governments license marriage, there will always be a need for a state to discriminate on who can marry.

If you want to call it a right, it will be a right with some boundaries. Certainly age, mental status, (in Illinois: no first cousins under age 50), or multiple partners, or people already married.

Scalia got it right when he said no judge is better able to judge moral questions then any other citzen.

Defining Marriage belongs before voters just as does abortion and almost all of these other moral issues.

The South Dakota abortion debate shows this isn't a process Liberals should fear. It requires the hard tasks of debate and argumentation. (Something most of today's Liberals have given up on in favor of dismissing opponents as Lakoff's authoritarian Dads - or read E. J. Dionne's review of Brown's bio of Hofstader The late Christopher Lasch, one of Hofstadter's students and an admiring critic, noted that by conducting "political criticism in psychiatric categories," Hofstadter and his intellectual allies excused themselves "from the difficult work of judgment and argumentation.").

Go to a framing the discussions meeting at your Church and ask a fellow UU their response to is abortion murder?, or should Illinois allow anyone to marry? If not, then whom? Listen to the answers and wonder if many of use have excused ourselves.

Or how in the world could UUA oppose Alito and not Roberts. They both were clearly candidates Bush said he would give us: Judges in the mold of Justice Scalia. A fellow who no way excuses himself from judgement or argumentation.


November 10, 2006 11:40 AM | Permalink for this comment

Dan Kennedy writes a great post explaining why the legislature's choice to recess rather than vote on the constitutional amendment initiative was both legitimate and appropriate.

Bill Baar:

November 11, 2006 09:43 AM | Permalink for this comment

Mass's health care plan (a good one I think) came from a Governor and Legislature.

Mass's gay marriage rule came from a court.

It's a huge difference that Dan's post omits. (I'd comment there but it failed).

If the case is marriage is a civil right, then is it universal? If not, what are the boundaries? If we must discriminate, what are the parameters?

I've just never seen this addressed very well by UU leaders except on the fringes by people like the UU polyamory folks... or on the Evangelical Right... where there is a long tradition.

Get into the middle ground, and we just seem to fail to address things and instead seek to hide hoping we can keep it out of the public debate.

That's not healthy. The SD abortion example shows us we should not shy away from the debate. A middle ground can be won. But it takes work and in the long run best for our own thinking and best for the country because it's a democratically arrived at agreement.


November 11, 2006 03:43 PM | Permalink for this comment

Bill Baar says: Defining Marriage belongs before voters just as does abortion and almost all of these other moral issues.

Moral issues are not voter issues. The law addresses protecting citizens, not morals. Morals are what churches and other houses of worship address, and we have separation of church and state.
Morals are not moral if you have no choice but are forced to obey them. A moral choice is a choice, where you have free will to act morally or not. So, in order to keep moral choices that are not citizen protection issues, moral, they should not be forbidden by law, but should be persuaded by religion.
Whether same-sex marriage causes harm to other marriages may be debated, but any measurable criteria is likely to say no, it's not. Abortion, obviously, is endlessly debatable.


November 11, 2006 03:45 PM | Permalink for this comment

By the way, in California, the legislature passed gay marriage. Der Governator vetoed it, saying the courts should decide.

Doug Muder:

November 14, 2006 06:14 PM | Permalink for this comment

It's easy NOW to say the legislatures should do the heavy lifting. The politics of this issue shifted massively when Massachusetts got out in front. Suddenly civil unions became the "moderate" position, where before it had been the radical fringe position.

If the Massachusetts Supreme Court had not made its ruling, gay marriage would still be nowhere. If we waited for the legislatures to run with this ball, we'd still be waiting and our grandchildren would still be waiting.

Legally, the situation is completely analogous with interracial marriage -- which also would still be illegal if courts hadn't made the first move. It's a question of equal protection under the law. You can't have the legislature defining government-favored institutions that work for some law-abiding people but not others.

Here's what's going to happen. Now that gay marriage exists, it will become increasingly obvious that it harms no one. Two generations from now, people will shake their heads at the strange days before gay marriage -- just as we do now about interracial marriage.


November 14, 2006 06:23 PM | Permalink for this comment

Except, Doug, that the Vermont Supreme Court had already put civil unions in motion -- and Vermont found a way to accommodate the basic civil rights issue while also getting the legislature involved before the Massachusetts ruling. That option was available to the Massachusetts court, and it chose not to take it. As a consequence, we got gay marriage in Massachusetts a few years early, but as a consequence we've postponed anything like it in a lot of other states.

The legislative option — taken by California (but vetoed by Gov. Schwarzenegger) and Connecticut, and now on the calendar in New Jersey — will prove more durable, even though it doesn't use the word "marriage."

Bill Baar:

November 15, 2006 11:40 AM | Permalink for this comment

It put in motion a reaction. Much in the same way Roe v Wade put in motion a reaction which did more for the Republican Party. Republican Legislators didn't have to risk anything with a vote, they just came out against Judges.

My advice to the pro-life crowd in Illinois was watch out come Roberts and Alito. You'll have to be making your case in a different way and SD proved that's a hard sell for them.

The Dec 8, 2005 Economist had a good take on why overturning Roe v Wade would be a very good thing for the left (something UUA should have read before the denounced Alito),

The main reason, alas, why Democrats will stick by Roe is simply because it is a totem in the culture wars. Why should pro-choice forces surrender any ground? That argument makes sense if you want to defend “choice” right into the ninth month, as some zealots do. But for most Democrats who merely want to keep abortion legal under most circumstances, that right would be more secure if it carried democratic legitimacy.

Embracing the democratic process would send a powerful signal that the Party of the People has rediscovered its faith in the people. Relying on judges to advance the liberal agenda allowed conservatives to seize the mantle of populism. Roe has given Republicans a free ride: they can claim to oppose abortion in the comfortable knowledge that it will never be banned. But imagine if Roe were overturned. How many Republicans would vote for a ban on abortion that only one in five Americans support? The conservative coalition would be split asunder.

Sticking to a position simply because it's a totem... is well, just not thinking much about things.

Bill Baar:

November 15, 2006 11:54 AM | Permalink for this comment

Kim writes,

Moral issues are not voter issues. The law addresses protecting citizens, not morals. Morals are what churches and other houses of worship address, and we have separation of church and state.

I really agree with this. Not everything immoral should be illegal (God forbid!) But the law, and voters, and judges to need to turn to moralists for guidance.

Illinois doctors were faced with decisions were the difference between abortion and murder was literally inches and seconds away with the delivery of a child. We ended up with born-alive act which our Gov had sign almost in secret.

We can't expect Docs to bear the burden and liability alone on this stuff. At some point the Legislatures have to define what's life and death; what's murder and what's not. UU's inclined to duck the questions. I think one reason is because the reality is we would find ourselves saying something immoral should be legal. That's were I find myself.

The former Surg General, C Everett Koop supposedly was confronted as a pediatric surgeon with conjoined twins and Koop had to make a split second decision as to which would live and which would die because both could not live conjoined together for long. He unhesitatingly made that call. But he murdered one child in the process. He did something immoral. That's the kind of murkiness UU's fear to tread. At least I've seen little talk on it. Moral issues are simply reduced to a "right" and the individuals expected to sort it out without much help.

Pastorally I don't think that happens. At least in the Churches I belong too; but publicly we seem to dodge.


November 15, 2006 06:35 PM | Permalink for this comment


Massachusetts repealed its anti-interracial marriage law in 1843. Most other states followed, although not till much later. When the Supreme Court legalized interracial marriage in 1967 only 16 states still had laws against it.

Moreover, all the famous Supreme Court decisions on racial equality derive from the 14th amendment, an amendment to the Constitution passed for the explicit purpose of establishing the legal equality of African-Americans. The courts generally ignored the plain purpose of the 14th amendment between the end of Reconstruction and the mid-twentieth century. In the 1950s they started taking it seriously again, but I don't think they get credit for leadership simply because they started enforcing a hundred year old law.


November 15, 2006 07:06 PM | Permalink for this comment

Philocrates said: The legislative option — taken by California (but vetoed by Gov. Schwarzenegger) and Connecticut, and now on the calendar in New Jersey — will prove more durable, even though it doesn't use the word "marriage."

No, California passed full gay marriage. We also have one of (if not The) most extensive Domestic Partner laws in the nation. Neither gives the whole ball of wax. We'd like all the federal rights of married couples, too.


November 15, 2006 10:03 PM | Permalink for this comment

Thanks for the correction, Kim!


November 16, 2006 07:55 AM | Permalink for this comment

Mitt Romney, the state's Catholic dioceses, and other anti-gay marriage groups are planning a protest rally at the State House this Sunday. (Boston Globe 11.16.06, reg req'd)


November 20, 2006 08:12 AM | Permalink for this comment

Mitt Romney clearly didn't read Dan Kennedy's explanation of why the legislature acted within its rights when it didn't vote on the petition to ban gay marriage last week: At his Nuns for Romney '08 Rally yesterday, he disingenuously told the anti-gay marriage crowd, "The issue before us is not whether same-sex couples should marry. The issue before us today is whether 109 legislators will follow the constitution." Ha!

More disturbing, though, is this tidbit from West Springfield dissenter Rich Sorcinelli: "Less than this has brought wars. This is what brings civil disobedience." I hope Romney and Archbishop O'Malley will think through how they hope to oppose gay marriage while discouraging the veiled threats of their foot soldiers.

("Romney seeks to force gay marriage vote: Rips lawmakers, eyes bid in SJC," Scott Allen, Boston Globe 11.20.06, reg req'd)


November 26, 2006 08:40 PM | Permalink for this comment

The Globe's Sam Allis doesn't like the way the legislature avoided a vote on procedural grounds, either, even though he supports gay marriage. My friend James Ford scolds him for his "procedural liberalism."

As for me, I'm somewhere between Dan Kennedy's defense of the legislature's pass and Sam Allis's frustration with it. (It should be harder to amend the state constitution than it is. On that point, I surely agree with Allis.) Frankly, I wish progressives would rely a bit less on the courts and pursue more democratic ways of building support for new rights — for strategic reasons, if nothing else. When the courts get too far out ahead of public opinion, they provoke popular backlash. Sure, we'll probably squeak by here in Massachusetts, but did we ever stir up the masses elsewhere — who have now made it much more precarious to seek rights for same-sex partnerships in many other states.

The court shouldn't be suprised that people want a say; gay-marriage supporters shouldn't, either.

("Giving process its due: End can not justify means on gay marriage," Sam Allis, Boston Globe 11.26.06, reg req'd)


December 1, 2006 08:02 AM | Permalink for this comment

I disagree with not putting this amendment on the ballot. While I agree in general with the principal that civil rights issues should not be voted on, marriage (of any form) isn't a protected or basic civil right. I support gay marriage, but to deny the peoples process is wrong. Unless the ballot measure that they are bringing has already been proven to deny someones civil liberties, or another constitutional right(state or national) (which it hasn't) then the ballot should be voted on with accordance to the Massachusetts constitution. To use loop holes to duck this vote and effectively kill it is wrong. Any violation of constitution and state ruins the rule of law, and the validity of the constitution. I want gay marriage to happen, I see no civil reason not to. If the ballot passed then actually made the vote you can challenge the decision. Legislature you are disgraceful, you choose to deny a right so that you may not have to show your decision on another right. For all those that choose to answer this and blast me I am sorry for you. You must never deny anyones right, especially that which is to vote.


January 2, 2007 02:06 PM | Permalink for this comment

Gov-elect Deval Patrick today urged the legislature to vote down the initiative that would repeal gay marriage in Massachusetts. He urged the legislature to use procedural means to kill the initiative in today's end-of-session Constitutional Convention, defying the Supreme Judicial Court, if necessary. (A court decision late last month threw today's proceedings into a bit of confusion.)

Meanwhile, Bay Windows is blogging today's last-chance Constitutional Convention on gay marriage. Be sure to read Dan Kennedy's reasoning about using procedural means to duck the vote.

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