More than the necessary 50 of Massachusetts legislators meeting in a Constitutional Convention voted to support placing a proposal to ban same-sex marriage on the ballot in a statewide election.
If at least 50 votes at a second Constitutional Convention also support a referendum, then the referendum will take place and whether Massachusetts should allow legal same-sex marriage will be decided by the majority of Massachusetts voters.
Like most of us, I suppose, I was rooting for the defeat of the anti-gay, or at least anti-gay marriage, forces during the run-up to the Constitutional Convention (dubbed ConCon) and while following the confused proceedings at ConCon itself at a blog provided by the Boston gay newspaper Bay Windows.
But then after passion had ebbed a bit, no longer caught up in the heat of the moment I found myself having some troubling second thoughts.
Remember what happened. Gay marriage advocates had argued before the Massachusetts Supreme Judicial Court (SJC) that same-sex marriage was mandated by the equality provisions of the Massachusetts state constitution. After deliberation, the majority of the SJC agreed and same-sex marriage was duly instituted.
So same-sex marriage owes its very existence to the Massachusetts constitution.
Then in an effort to roll back the moral depravity of gay marriage, anti-gay forces gathered signatures to call for a statewide referendum on the issue. The Massachusetts Constitution states that if enough voters petition in support of referendum, state legislators meeting in ConCon should vote on whether to place the issue on the ballot. If at least 50 legislators (one quarter of the whole) approve it at two successive ConCons, it goes on the ballot.
Plausibly fearing that at least 50 legislators would approve a referendum, gay advocates tried to block a vote. Anti-gay marriage forces responded by petitioning the SJC to order the ConCon to vote on ballot placement.
In a rapid decision, the SJC stated unanimously-including all the justices who had approved gay marriage-that the ConCon must vote, that the constitution stated that if presented with sufficient signatures the ConCon shall vote on about a ballot referendum, not may vote.
The court acknowledged that it lacked the power to force ConCon to hold a vote, but the message was not lost on legislative leaders. And so the ConCon voted and more than 50 votes supported sending it on to the next ConCon to see if it is approved there.
Now here is where the nagging second thoughts come in. With all the gay-supportive will in the world, I do not see how Massachusetts gays and their supporters can appeal to the state constitution to establish gay marriage, and then turn around and urge defiance of the plain language of the constitution when it comes to some aspect they do not like.
Constitutions provide neutral rules of procedures to be followed in deciding contentious issues. To refuse to follow the constitution is to cut yourself off at the knees, to undermine the very basis by which your own rights are recognized. And the next time it may be the other side that urges that the constitution be ignored.
Further, to urge the legislature to ignore the language of the constitution is to urge it to undermine its own legitimacy: The constitution is what created the legislature in the first place and gives it its authority. Defying the constitution would deny the very basis of the legislature's existence and legitimacy.
Gay advocates coped with these kinds of arguments ... by ignoring them. Instead they trotted out the familiar catch-phrase of "People's basic civil rights should never be subject to a popular vote." But however appealing that phrase may be as political rhetoric there are two problems with it.
First, that is not what the Massachusetts constitution says. The constitution provides a means for voters to vote on practically everything if they jump through enough procedural hoops.
Second, "civil rights" are not self-defining. Anyone can claim anything as a (civil) right. But what should justifiably count as a civil right may be a matter of serious disagreement. Like it or not, they are themselves matters to be decided by constitutional processes, legislatures and ultimately voters. That is what the word "democracy" means.
And so Massachusetts gay marriage advocates must either persuade a few more legislators at the next ConCon to decline to approve a referendum or else they must be prepared to defend what they hope will be recognized as a civil right. If I were they, I would be starting preparations yesterday. And the rest of us would be wise to do whatever we can to help.
9 Comments for “The Mass. Vote (2): Don’t Cut Constitutional Corners”
posted by Northeast Libertarian on
The argument here keeps veering between tactics and tactics, with advocates of a long history of pooh-poohing marriage rights (Mr. Rosendall) arguing with other advocates who seek to legitimize gays in the eyes of the world through government endorsement of some of our relations.
Why are so few people pointing out that the government should have no real involvement in “legitimizing” or “illegitimizing” how people choose to conduct their private affairs?
Gays could (and should) be leading the vanguard of getting government out of our bedrooms — instead, the “leadership” is busy arguing over which items of our personal and sexual lives should be restricted, licensed and regulated and in what order.
posted by Thomas Henning on
Mr. Varnell would clearly have us “Let The People Vote,” as the anti-gay protesters are fond of demanding.
Would he also propose the use the same process to put forth a statewide referendum IN SUPPORT of same-sex marriage?
posted by Randy on
“Anyone can claim anything as a (civil) right. But what should justifiably count as a civil right may be a matter of serious disagreement. Like it or not, they are themselves matters to be decided by constitutional processes, legislatures and ultimately voters. That is what the word “democracy” means.”
This is the biggest bunch of hooey I have seen on these boards. Voting isn’t clearly a civil right? Clearly, I don’t havea civil right to attend Harvard college. I don’t have a right to attend any college, but I do have a right to receive an education unti the age of at least 16.
We have a little phrase in the Constitution, it’s called the equal protection clause. That means that if you grant a right to any group, you must grant it to all. This is NOT something that goes up for a vote
Sheesh. Perhaps because I’m an attorney I know this stuff, but everyone should have had some degree of knowledge of their Constitution.
Bottomline: What the gay activists did was perfectly legal. So what’s the problem?
posted by raj on
Mr. Varnell might have a point (that the MA legislature should be required to vote for an anti-gay marriage amendment supported by intiative petition, which it did, exclusive of parliamentary maneuvers) except for the fact that the MA legislature was, at the same time, presented with a health care amendment that was also supported by initiative petition, that was killed by a parliamentary maneuver.
Apparently, Mr. Varnell believes that some MA state constitutional amendments should be required to be voted on by the MA state legislature, particularly as they relates gay issues, but that it is OK if the MA state legislature uses parliamentary maneuvers to kill other proposed state constitutional amendments.
Just what is the difference, Mr. Varnell? That you want anti-gay constitutional amendments to be subjected to public referendum, while you are quite content with having other issues side-lined by parliamentary maneuvers?
posted by Novaseeker on
The problem with the analysis is that it excludes the courts from the idea of “constitutional processes”, and places the legislative process on a higher level than the judicial one — a notion which itself is not in accord with the constitution.
The United States is a republic, not a democracy, and it’s a republic in which the judiciary plays a prominent constitutional role. Some may find this anti-democratic, but ultimately it’s the structure envisioned by our constitution, a document which is rather skeptical of direct democracy.
While I think it’s alright for this to be voted on, because it is provided for in the Mass. constitution, the suggestion that what the Mass. SJC did in 2003 was somehow “undemocratic” is, in my view, a much too hampered view of the role of judiciary in matters pertaining to the constitution.
posted by kittynboi on
Nova;
Most Americans don’t even realize we’re a Repbulic, not a democracy, much less even know the difference.
And I’ve always found all this “lets not fore it with the courts, let people vote” nonsense very unmoving since its so hollow. People need to realize that ANY victory in the marraige fight, regardless of how we achieve it, is going to be seen as illegitimate by the majority of the right wing opponents. They have decided ahead of time that we have to lose, and to them that is whats important, not what their idea of “democracy” says about the issue.
Our focus should be winning and persuading the public in general to take our side. We shouldn’t worry about what the religious reich says as trying to placate them is a complete waste of time, since they will never be satisfied no matter what.
posted by Richard J. Rosendall on
NL wrote, “advocates of a long history of pooh-poohing marriage rights (Mr. Rosendall)….”
Huh? Pooh-poohing marriage rights? When? I don’t know why you can’t disagree with people without mischaracterizing their positions. I have consistently been strongly in favor of civil marriage equality. I have disagreements with some people over the strategy for getting there.
Please note that I am not going to get into a protracted debate with NL on a factual dispute of this kind. If he persists in his false claim about me, readers can read my views for themselves by means of a quick Google search. No matter what else he writes, no matter how clever his put-downs or how impressive his scorn, he cannot change the fact of my strong support for civil marriage equality.
As to getting the government out of the marriage business, I have seen various forms of that argument for years, and I still see no reason why gay people should take on such a burden. I seek equality under the law for gay people, which means reform, not a revolution. Nor do I agree with the characterization of marriage licenses as constituting the government being in our bedrooms. That was true of laws criminalizing sodomy. But nothing in the issuance of a marriage license requires particular bedroom behavior by those to whom the license is issued. As usual, instead of discussing the particular issue at hand, NL drags in his whole libertarian program, and insults those of us who are working more realistically for actual change. Unfortunately, the real alternative to our political realism is not his uncompromising libertarian ideal, but the further empowerment of the homophobic Republican right, which is even bossier and more intrusive than big-government liberals. An all-or-nothing approach gets you nothing. I am working for sustainable steps forward, and if that causes me to be misunderstood by some, then so be it. But I don’t think NL really misunderstands; he is just doing his usual posturing.
posted by Raot on
The only genuinely ‘realistic’ approach would be to acknowledge that America is slowly but surely going fascist and therefore issues such as gay marriage will no longer matter.
posted by Northeast Libertarian on
Huh? Pooh-poohing marriage rights? When?
Why here, of course:
?It makes no sense strategically for us to dump on the Democrats? laps a marriage bill in the first year they came back after 12 years,? Rosendall said.
You certainly haven’t stopped your dogged lobbying for other, less popular initiatives throughout history — such as ending sodomy laws — but on marriage, you’re frightfully tepid and towing the line of your Democratic party masters. That’s not a huge surprise.
As to getting the government out of the marriage business, I have seen various forms of that argument for years, and I still see no reason why gay people should take on such a burden.
Because it’s not only a burden for gay people.
If we are to head up the cultural vanguard, as you so often demand, we should begin by taking the lead and pointing out the absolute dangers of setting government — not families — as the ultimate arbiters of our relationships and our lives.
Of course, that’s incompatible with the socialist/left-wing program that you support, and whose priority you place above even government-regulated marriage, so it’s even worse than replacing the government bureaucrats screaming “that’s disgusting” with another set of government bureaucrats saying “OK, we’ll let you do this family thing *if* you do it our way.”