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May 13, 2004

Comments

Dan

Is there anything else that could legally happen between now and Monday that will halt gay marriages from taking place in Massachussets?

Dan

Ben Bateman

Gabriel, I'm curious. You're obviously gleeful that this is going to happen. Yet a great many people, myself included, would agree that what the MSJC has done is a coup against representative government. How do you expect us to react? How do you think we should react?

Let's put it another way: Suppose that there were a coup in which you believed that representative government was being subverted. Imagine a typical South American scene: The president announces that the country is in crisis, imposes martial law, and dismisses the legislature at the point of a gun. How would you react?

You see, this is the problem with bypassing the legislature. Democracy only works if people believe that it has worked. Democracy is a way to assure the losers that they were given a fair shake at getting their policy into law. The consequences of sending the losers home with the feeling that they did not get a fair shake are pretty well documented historically, and pretty ugly. People used to fight wars about these things all the time.

You want a majority of the country to wake up Monday with seething hatred at the minority--not because of SSM itself, but because they were cheated by dictators posing as judges. Millions of people are going to believe that their votes aren't worth much, because some judge can capriciously "interpret" a constitution to mean anything at all. You can explain all day that they're mistaken, but that's still what they're going to believe. Millions of people are going to be saying Monday morning that we don't live in a democracy any more.

Is SSM worth that to you?

Dan

Ben Bateman,

Question: How do you feel about the US Supreme Court allowing interacial marriages in all states back in the days that 90% were against it?

Dan

Galois

Dan,

It is technically possible that the 1st Circuit Court of Appeals could grant an emergency injunction today. There, is however, almost no chance of the that for several reasons. The courts aren't open on the weekends, and I think Cambridge has said they will start granting licenses at midnight on Monday. Now unless one gets a waiver there is a three day waiting period before marriage, so again technically the 1st Circuit could do something early next week, but there is almost no chance of that happening.

Ben,

I wouldn't say that I'm gleeful. I'm just a little amused at the hyperboles. Dictators. Tyranny. Seeking emergency injunctions as if somebody is about to be executed on Monday. I think the justices in Goodridge made the right decision, but more importantly justices make decisions all the time and they strike down popularly elected laws as unconstitutional. That does not mean we live in a dictatorship. That means we live in a constitutional democracy. There is no need for you to be up in arms.

What's even stranger is that you don't even live in Massachusetts! This isn't even close to martial law, and yet you're talking about taking up arms. When the California Sureme Court ruled in 1948 that interracial marriage restrictions were unconstitutional many people were upset, but that's the way the system works. It's not tyranny. We don't need to send troops into Massachusetts. We don't need to invade Canada to liberate them from their tyrants.

lucia

I'm also confused about the "judicial tyrant's" idea. Didn't some, but not all, people get upset about the SCOTUS imposing its "own view" in Chisholm vs GA 1793? Didn't a few really angry states rights advocates gripe and moan about the court imposing the Federal Constitution on the states? Didn't the governed come to the consensus decision to let SCOTUS interpret the constitution, but amend it? (See 11th amendment.)

I mean.. haven't we been living under Judicial Tyranny practically since the constitution was ratified?

Ben Bateman

Gabriel, answer the question. If you believed, as the opponents of SSM do, that Goodridge is a subversion of Masschusetts' right to republican government, what would you do about it?

You can minimize the harm all you want, but in doing so you're taking the same anti-democratic approach: You think we're wrong about SSM, and you think we're wrong about the harm to democracy from forcing SSM through the courts. Either way, you don't care what the people believe. You think they're wrong and therefore should be ignored in favor of what the powerful minority believes. That's oligarchy.

Why should I care what happens in Mass? For at least two reasons:

1) I have no doubt that the FF&C clause will force Mass SSM on the other states, so any couple in Texas can do what the defendants did in Williams v NC did: They can't marry in their home state, so they move to another state, live there long enough to establish residency, get married, and move back to Texas. You say that won't happen, but I'm sure you won't be upset when it does.

BTW, Gabriel, I looked back at the actual Constitution and re-read the actual text of the FF&C clause: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." So your argument won't fly that Williams won't apply because divorce is a judgment but marriage is not. The FF&C clause is not limited to court judgments. Marriage would be a "public act."

2) It's not like Mass is a foreign country. All the states are closely connected by more than just the FF&C clause. An anti-democratic precedent like Goodridge affects everyone's rights.

Again, Gabriel, answer the question. What do you expect us to do? What recourse do you think we have? Do you believe, as Lucia does, that it's still democracy as long as the people can muster tens of millions of votes to counteract the votes of a few judges? (Somebody should do the math and figure out how many votes a US Sup Ct judge effectively has under that theory.) Or do you want the people to submit to judicial power and believe that their views don't matter and shouldn't matter? Do you want them to believe that in the future their government will be run by somebody else, namely a little cabal of people who agree with you? Or are you hoping they'll swallow this mystic nonsense that somewhere in the emanations of the penubras of the Constitution there's an SSM requirement? It was really there all along for decades and nobody noticed---including the people who voted for it?

What do you expect these people to do, Gabriel?

Fool

Ben:

I am confused. First, I fail to see how the “representative government is being subverted.” You have simply adopted the political rhetoric of groups like the Liberty Counsel. Please explain.

Second, let’s assume that the Goodridge decision does in fact somehow subvert representative government. How does this decision affect you? How does it affect the plaintiffs in Largess? It doesn’t.

To the extent that the Plaintiffs argue it does, it is a tenuous, theoretical effect. Thus, while you ask “How do you expect us to react? How do you think we should react?,” my question to you is why do you care? It does not affect your right to marry the person of your choosing – which I’ll assume would be female. It does not limit your rights to marry in any way. Thus, while the plaintiffs argue that they have lost their right to a republican government, that “loss” – in this particular case – will have no affect on your rights. It will not contract your rights. If anything, they are theoretically expanded – even if you do not ultimately choose to take advantage of that enlargement of rights. Thus, even assuming that the SJC decision crosses the line into legislation, the actual decision does not hinder your rights – or the plaintiffs rights – in any way.

From a more practical perspective, it seems that adding state representatives to the lawsuit is disingenuous. It is thought that this addition would resolve any potential standing issues. They are the legislators. I have no doubt that they agreed to join this lawsuit because they recognize that the likelihood of a successful constitutional amendment (to the state constitution) is remote. Go back to the capitol building and draft his little amendment. That is how the republican form of government works, right?

You worry about the “losers” getting a fair shake – again a theoretical argument. But, once more, I ask what is it that you lose by this decision? However, this time you can’t argue that you’ve lost the republican form of government since your “fair shake” theory because that begs the question. Since you personally lose nothing, what is unfair about the “shake” you got? You’ve lost the right to impose your personal beliefs on others. I don’t think that a recognized right. To have those beliefs is certainly your right, but not to impose them on others.

How were you cheated? What have you lost as a result of the Goodridge decision? Put another way, what is it that you were cheated out of? What will you lose on May 17th? The right to marry someone of the opposite sex? Don’t think so; that right remains firmly in tact. As I wrote above, even if you never choose to exercise the rights under Goodridge, you, like everyone else, will have those rights?

Judges overturn legislative and executive acts all the time. They have since Marbury v. Madison. This is not radical. It is not new. Portions of the U.S. Congress’s Internet regulation act were invalidated – despite the fact that a majority of the country agrees that they serve laudable social interests. Courts have invalidated Congressional redistricting schemes (gerrymandering). The Supreme Court invalidated all anti-miscegenation statutes. The Supreme Court has rendered decisions limiting or clarifying the powers of the legislature and the executive branches (both independently and to the extent it was believe that those powers overlapped.) There are countless other examples.

So, while you and Liberty Counsel choose to cast the Goodridge decision in terms of some new departure from traditional judicial conduct, quite simply it is not. You and Liberty Counsel just disagree with the subject matter of the decision.

You write: “You can explain all day that they're mistaken, but that's still what they're going to believe.” It’s curious that you chose the word “believe”. It seems almost a tacit admission that “they” might be wrong. They can believe anything they want and not violate the Constitution. In fact, the state – assuming it is sentient - can believe anything it wants. What it can’t do is act on those beliefs if those actions would violate constitutional principles.

And, turning to your last question, since allowing SSM would not impugn your rights in any real way, why do you object to SSM? If all of these drastic consequences will take place, why not just accede? After all, you will still be able to marry. So, I ask you is preserving only opposite sex marriage worth that to you?

Galois

Gabriel, answer the question. If you believed, as the opponents of SSM do, that Goodridge is a subversion of Masschusetts' right to republican government, what would you do about it?

I'd ask Congress to authorize the President of the United States to send in troops to remove the tyrants. If all of these people in Massachusetts are tyrants who are willfully ignoring the law, what good will a court order do? If they are going to throw away the constitution what makes you think they'll listen to some judge in Boston? If, on the other hand, I thought the justices just got the law wrong, I'd either (a) live with it, as I do with most decisions I disagree with, or (b) do my best to push for a constitutional amendment to clarify how I thought the constituion should have been interpreted, if I thought it was necessary.

You can minimize the harm all you want, but in doing so you're taking the same anti-democratic approach...That's oligarchy.

No that's constitutional democracy. As Lucia pointed out courts in this country have made unpopular decisions for over 200 years. In fact the Mass SJC in 1819 made quite an unpopular decision in recognizing an interracial marriage. Actually, though, by a solid margin Massachusetts residents agree with the Goodridge decision (50%-38%). If you're going to start talking about rising up in arms every time a court makes a decision you're not going to be taken seriously.

BTW, Gabriel, I looked back at the actual Constitution and re-read the actual text of the FF&C clause: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." So your argument won't fly that Williams won't apply because divorce is a judgment but marriage is not. The FF&C clause is not limited to court judgments. Marriage would be a "public act."

Read it again. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Congress has specifically said that judgements must be given FF&C. That is why the courts have drawn such a distinction. Congress has also specifcally said that same-sex unions need not be recognized. (Although they can, that matter is left for the states to decide).

Or are you hoping they'll swallow this mystic nonsense that somewhere in the emanations of the penubras of the Constitution there's an SSM requirement?

It's neither mystical, nor nonsensical, nor some emanation or penumbra. It states quite clearly in the Massachusetts constitution (Article CVI):


All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.

I know you disagree that this equality should apply to marriages, but just because you disagree with a decision does not mean we live in an oligarchy. I believe I answerd your question above, if you would like further clarification please ask.


Fool

To elaborate on Gabriel’s observation that “It’s neither mystical, nor nonsensical, nor some emanation or penumbra,” I will first admit to not being an expert on Massachusetts’ constitution jurisprudence; however, from a Federal perspective, as I have discussed previously, I still cannot figure out why the Supreme Court chose to squish rights into the “penumbras” of the 14th Amendment as opposed to simply finding that they exist under the 9th.

Ben Bateman

Fool: Why would it matter what my personal harm is? If you aren't planning to marry someone of the same sex, why do you care about SSM?

Gabriel: Do you really want to get into the history of the Mass. Equal Rights Amendment? Everything I've read indicates that the opponents claimed that it would be used for SSM, and the supporters denied it. In fact I seem to recall the supporters saying that fears of the ERA being used for SSM were . . . wait for it . . . a paranoid fantasy! Gosh, that sounds familiar!

In fact, I had a long discussion on MD.com a few months ago with somebody who argued: Yes, the Mass voters believed that the ERA would not create SSM. But SSM was plainly in the text of the amendment, so if the voters didn't realize that and foolishly relied on the assurances of the supporters, then it was their own darn fault.

You seem comfortable with the idea that what the voters intended in approving a constitutional amendment is irrelevant; the constitution means whatever the judges can twist it to mean, even when the voters clearly didn't intend it to mean that.

I'll stay on the side of the voters: A constitution means what its voters intended it to mean.

I still don't have an answer on what you think SSM opponents should do. I guess you're just refusing to take the question seriously.

Were you serious about a military response? As a conservative, I'll do just about anything to avoid a military response, because I value stability of government. We conservatives are big-hearted suckers that way: We abhor the idea of weakening the country for political advantage. That's why we always have tactical disadvantages against liberals: We want to preserve our culture and traditions, while they want to destroy them. It's always easier to destroy.

Maybe you're just incapable of understanding the anti-SSM viewpoint. But here's one more try: A court takes a sentence from a constitution, stretches it beyond all comprehension and voter intent, announces a result that you and a majority of voters find repulsive, and also announces that the legislature cannot change this result because it's based on the constitution. You don't think that the result is based on any reasonable interpretation of the constitution.

Construct whatever hypothetical you want along those lines. Imagine that the court announces that slavery is legal, and the legislature may not illegalize it. Imagine that the court says that the constitution mandates racial segregation by law. Imagine that the court mandates the criminalization of homosexuality. Whatever! Imagine that situation, and then tell me what you would do about it.

Galois

Do you really want to get into the history of the Mass. Equal Rights Amendment? Everything I've read indicates that the opponents claimed that it would be used for SSM, and the supporters denied it.

So people were aware that there was a possibility that it could be used for SSM and voted for it anyway. They could have easily ammended it to say, "but nothing here shall be construed as to require same-sex marriage". Now can you tell me that most of the voters were voting for the amendment only under the condition that it would never lead to SSM? I would think most voters didn't think about it too much one way or another. What they did want was to be sure that people were treated eqaully regardless of their sex. And they were going to leave it to the courts to determine whether that equality was being denied on a case by case basis.

Of course even without the reference to sex, the article (then article I) said that people should be treated equally.

You seem comfortable with the idea that what the voters intended in approving a constitutional amendment is irrelevant; the constitution means whatever the judges can twist it to mean, even when the voters clearly didn't intend it to mean that.

No, but I think (1) it is not always so easy to figure out what the voters intended when they cast the ballot, and (2) I think the voters in such an amendment are voting on the general principle, and are intentionally leaving it to the justices to work out the specific applications of that principle.

I still don't have an answer on what you think SSM opponents should do. I guess you're just refusing to take the question seriously.

I gave you an answer. I think SSM opponents should either (1) live with it, (like many segregationists were forced to live with Brown), or (2) push for a constitutional amendment if that is unacceptable. But all of that was under the assumption that the justices were just mistaken as a matter of a law. If I thought the judges were intentionally ignoring the rule of law and had successfully initiated a coup and installed themselves as dictators, well then I would support their removal from the bench. That would necessarily have to come from force of arms because they have no respect for the rule of law. I had said going to Congress, but that was more a matter of if I had lost a republican form of government. In the first step I would probably go to the Governor and the Legislature to try to remove them, first through peaceful means and if necessary the National Guard. If the Governor and the Legislature did not cooperate I might think to myself, maybe I'm not living under a tyranny; maybe I just disagree with a court decision.

Were you serious about a military response?

In response to a tyranny, yes! That is the only way. A tyrant by defintion is above the law, so force is the only way to stop them. Of course, I think it's ridiculous to claim that the SJC justices are tyrants.

Whatever! Imagine that situation, and then tell me what you would do about it.

I would imagine in that situation there would be such an uproar that the justices would be immediately removed from office. And new justices would be installed immediately to correct the problem. If that did not happen, I might reconsider my views. I might think that perhaps they hadn't stretched the constitution beyond any possible comprehension. Perhaps their view was a possible way of reading the constitution, however unlikely it seemed to me. In that case if I thought people's inalienable rights were being denied because of this bizarre reading (I'm imaginine slavery here), I would work to do all I can for a constitutional amendment to outlaw slavery. If it were a matter of just misreading the constitution and not ignoring it, this would suffice. Of course, as I said in the slavery case I can't imagine it occurring in the first place--one justice might go crazy, but five? If it did, though, I would imagine Congress would remove the justices immediately.

Mark Miller

Ben wrote: "You seem comfortable with the idea that what the voters intended in approving a constitutional amendment is irrelevant; the constitution means whatever the judges can twist it to mean, even when the voters clearly didn't intend it to mean that."
----- Just as you seem comfortable with amending the constitution when the people whose job it is to interpret it don't happen to agree with your interpretation.


Ben wrote: "I'll stay on the side of the voters"
----- You mean the ones who twice voted Bill Clinton to White House ? Are you always on the side of the voters ? My guess is that your being on the side of the voters has more to do with this specific issue at hand and less to do with your affiliation with populism.

Ben wrote: "A constitution means what its voters intended it to mean."
------ Huh ? Who wrote the Constitution ? And who decides what the voters intended ? (anyone but judges, right ?) Maybe, in your world, you would do away with Constitutions and just have the voters decide on all laws by a majority vote. Does that work for you ? Or does it depend on the result ?

I won't speak for Gabriel or Lucia but I feel that I do understand the anti-SSM viewpoint. And there are some anti-SSM arguments I happen to agree with. But many are based on the simple grounds that gay people and gay behavior is immoral. Hence, your ridiculous analogy of legalizing SSM to legalizing slavery.

That analogy is the intellectual and moral equivalent of the analogy between the abuse at Abu Gharib to the execution of Nick Berg. (which by the way, many people are making).

Finally, you view of the Massachusetts Justices decision on Goodridge reminded me of how some left-wing leaders and pundits viewed the SCOTUS decision in the 2000 Presidential Election. In your own words, Gosh, that sounds familiar!

Fool

Well, Ben. Whether it personally affects you (or your rights) matters because if it doesn’t affect you (which I assume it does not) why do you need “to do” anything? You keep asking Gabriel what opponents of SSM should do. Since it doesn’t affect you: why do you care?; why do you debate this?; and why do you feel the need to do anything?

The impression is that you simply don’t like the result. I think that’s why people find it difficult to answer your “what should we do question?” because they have a difficult time understanding the source of your clearly strong desire to do something.

A Congressional act raising or lowering taxes (or some mix thereof) presumably affects everyone (if not most Americans); therefore, it makes sense that everyone would have a stake in the matter. Thus, everyone is entitled to weigh in bringing a certain measure of “standing” with their comments. Federal elections presumably affect everyone so, everyone can vote with a degree of “standing”.

Since you’re rights are not affected, I ask you again, why do you care? Are you the caped crusader of republicanism? It’s more likely that couldn’t give a damn about republicanism and you simply find gays “icky”. So, defense of republicanism is today’s more-politically-correct hook on which you can hang your hat – thus avoiding simply admitting a bias. Again, since you’re rights are not abridged by the decision, why do you need to do something?

So, my suggestion is don't do anything.

trey

"Either way, you don't care what the people believe. You think they're wrong and therefore should be ignored in favor of what the powerful minority believes. That's oligarchy."

nope, its democracy. The rule of the people, not a majority, the people, all of them. The founders were rightly afraid of majority rule. For them, the idea of a definition of 'democracy' as a rule of the majority was basically mobacracy.

And thus the institution of basic checks and balances to make sure that the voice and rights of the non-majority (whether that was 4, 10 or 49%) were taken into consideration and protected.

As the father of a daughter, a daughter who is african american and being a gay father, I can tell you I am very thankful that the founders of the nation and writers of the constitutions put those protections in, very thankful.

Jake Squid

It has become clear during the course of these comments that Ben Bateman disapproves of our form of government. He clearly believes (or wishes) that we do not live in a constitutional republic (or democracy if you prefer) where there is a branch of government (the judicial) that is responsible for interpreting the constitution as it applies to the law. If Ben Bateman had his way we would be living in a Majority Rules form of government where there are no inalienable rights. All rights would derive from a majority vote and be subject to change at any time. And I'm OK with that desire. The problem I have is that that is not the form of government that we have. Ben Bateman's arguments WRT Goodridge come from the Majority Rules form of government and thus are irrelevant to the system in which we live. It would seem that Ben Bateman believes that the Judicial branch of government has no role in government.

Also, judging from a statement that Ben Bateman has repeatedly made (those who have children care about the future more than those that don't) he must believe that the judges who voted in favor of Goodridge don't have children. An insulting and unsupported statement as are so many of the things that he writes.

Ben Bateman's arguments in terms of constitutionality have now descended to the point of "in my world this is true" logic that simply has no relevance when talking about the form of government that we live under in the US. Unless we all want to let each other know what the world would be like if we had our way I have a hard time seeing how this can be a productive discussion.

What should SSM opponents do? Amend the constitution. Under our system of government that is the recourse that they have. Shouting that the majority should rule gets them nowhere since that is not the way our system of government works. Unless they can amend the constitution to implement majority rule in all cases.

Feel free to ignore the next paragraph.

And as long as I've broken my silence WRT Ben Bateman, I'll point out that Mr. Bateman has been ignoring me since 2/6/04, over a month and a half before I wrote anything insulting about him. Whew, I feel better having gotten that off my chest.

Ben Bateman

Gabriel: “[On how he would react to an outrageous court decision:] I would imagine in that situation there would be such an uproar that the justices would be immediately removed from office. And new justices would be installed immediately to correct the problem.”

That’s pretty much what SSM opponents are trying to do Gabriel. They’re trying to fix this within the legal system, and you’re blowing raspberries at them. Shouldn’t your attitude be that they’re entitled to do what they’re doing?

"[On the Mass. ERA] They could have easily amended it to say, "but nothing here shall be construed as to require same-sex marriage". "

So it's the responsibility of the people to eliminate every imaginable ridiculous interpretation of a constitutional amendment? Including the interpretations that the amendment's supporters are explicitly saying are unreasonable? Wow! That's going to make for some long amendments. How about:
“Nothing in this constitution shall be construed to:
require same-sex marriage,
require unisex bathrooms,
forbid single-sex sports teams,
forbid single-sex schools,
forbid sex discrimination in military service and conscription,
require government funding of contraception or abortion,
forbid sex-based presumptions in child custody cases
forbid veterans’ benefits,
require the Boy Scouts to admit girls,
etc.”

(On veteran's benefits, don't laugh. Read a summary of Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256 (1979). The argument was that veterans shouldn’t receive benefits because the vast majority were male. The US Sup Ct vote was 7 to 2, without an equal rights amendment.)

The list isn’t nearly long enough, of course. And in each of those exclusions we haven't been nearly explicit enough. We need a couple hundred words under each point to make them clearer.

Is that what you're saying the people of Massachusetts should have done? They should have tried to rule out every ridiculous interpretation? You're a mathematician, Gabriel. How many ridiculous interpretations can one principle generate?

Gabriel: "I think the voters in such an amendment are voting on the general principle, and are intentionally leaving it to the justices to work out the specific applications of that principle."

Yes, but they're supposed to do it consistently with voter intent, whether those voters are individual citizens or elected representatives. This happens all the time in the practice of law. We have courts because there are always cases that don't clearly fit within the statute. A big part of what lawyers and courts do is analyze situations that the legislature didn't contemplate and try to find a result that's as consistent as possible with the text and intent of the statute.

I’m particularly familiar with this principle because it comes up all the time in tax law, where people engage in billions of economic transactions every year that must be categorized within a relatively small Tax Code and Regulations. Inevitably there are transactions that don’t fit within the rules, and one of the sources often used to arrive at the correct result is the Joint">http://www.house.gov/jct/tableofcnts.html”">Joint Committee on Taxation, which prints thousands of pages every year explaining what Congress was thinking about when it passed tax legislation. Its reports are often used in determining how to treat unusual transactions.

So you’re right to say that laws are often principles, the details of which judges are supposed to work out. Yes, that’s what judges do. In fact, you could say that all law are principles, the details of which judges must work out. But they do it in an attempt to give the answer that those who voted on the statute would have given had they considered those specific facts.

Here’s another example I’m familiar with: The Tax Court is usually crammed with tax protestors—people who want to “interpret” the Tax Code in some way so that they don’t have to pay income tax. Either the 16th amendment wasn’t ratified, or “income” doesn’t include “wages,” or returns are optional, or some such. Click here for a good overview of the various tax protestor arguments. These people march into Tax Court every year by the hundreds, usually certain that their brilliant legal analysis will convince the judge and bring the entire federal tax system to a screeching halt.

Except it never works that way. No matter how clever of a textual interpretation the tax protestors give, the answer is always no. The court knows that Congress intended us to have an income tax and include wages as income, so that’s what the law is. It would be utterly irresponsible for a court to shut down the federal government’s main revenue stream over some word-twisting argument that completely ignores congressional intent.

I see the Goodridge decision in exactly the same way. The reason that the Massachusetts ERA doesn’t require SSM is that we know that the people who voted on it didn’t intend that. The Mass. voters could not—even in theory—have negated every ridiculous interpretation that someone might claim. The people were not fools for trusting their judges. If the people ever stop trusting their judges, we’re all in big trouble.

Our legal system—like our currency—is based on faith. One article of that faith is that judges will be reasonable people who place the proper conduct of the legal system above their personal interests and political views. You can’t run our kind of legal system without that kind of faith. Maybe it’s unjustified. Judges, being merely human, have always been corrupt to some extent. But it’s vital nonetheless.

Every time an opinion like Goodridge or Roe v. Wade comes along, we lose some of that faith. Those opinions tell us that judges are no longer willing to confine their corruption to personal enrichment and obscure topics. Those opinions tell us that judicial corruption has extended to the point that judges are willing to abuse their offices to advance their ideologies, while openly thumbing their noses at the people and their representatives. Those judges stand brazenly before the public and address a legal topic that every voter can understand, saying, “Your representative’s vote doesn’t matter. Your intent when you voted on the constitution doesn’t matter. You don’t matter. We will tell you what the law is, and you will obey.”

A little personal corruption in the legal system is nothing new. It has always been there, and the country has always been strong enough to endure it. But the harm from a public loss of faith in the legal system is difficult to fathom. It would be like a loss of faith in our currency. I fear that you won’t understand how important that faith is until it’s gone.

Jake Squid

"Every time an opinion like Goodridge or Roe v. Wade comes along, we lose some of that faith."

But every time a situation like Scalia (or is it Rhenquist?) doesn't recuse himself from presiding over a case involving a friend (like Cheney) or Bush v Gore comes along, we gain back some of that faith. "Those opinions tell us that judges are no longer willing to confine their corruption to personal enrichment and obscure topics. Those opinions tell us that judicial corruption has extended to the point that judges are willing to abuse their offices to advance their ideologies, while openly thumbing their noses at the people and their representatives. Those judges stand brazenly before the public and address a legal topic that every voter can understand, saying, “Your representative’s vote doesn’t matter. Your intent when you voted on the constitution doesn’t matter. You don’t matter. We will tell you what the law is, and you will obey.”"

Sometimes the judiciary makes interpretations that we don't agree with or find patently ridiculous (validating confessions gained using physical force by the police for example). But it goes both ways. This is consistent with US history. It always has and it always will. At least until we revert to dictatorship of some form or another.

I don't think for a moment that Goodridge is the case that is going to make people lose their faith in the legal system. It simply doesn't have the emotional impact as Loving or Roe or Brown did.

Besides, don't polls show the majority of Mass. citizens believe that the SJC made the correct decision? I thought I saw that. Majority rules! USA, USA!

lucia

But they do it in an attempt to give the answer that those who voted on the statute would have given had they considered those specific facts.

But Ben... you said people thought the amendment might force SSM when it was proposed, discussed and ratified. Wouldn't that suggest that many voters believed it would do exactly what it is doing,accepted that fact and intended that consequence?

Why do you assume the voters were against what they were told the amendment would do? I mean.. the idea was discussed, legal experts said it would happen, and it did!

Galois

I'll make this quick, especially as most of what I'll say was pointed by Jake and Lucia. I do not believe people need to list every possiblity when passing an amendment. As you noted, that is impossible. So they go with the principle, and leave it the the judges to put it into practice. If they feel the judges are getting things wrong, they amend again. In this case by a 50%-38% margin the citizens of Massachusetts felt they got it right. You will frequently get court cases where it is impossible to get 100%of the people to agree with the decision.

Now if there was a concievable reading of the amendment that you absolutely did not want, then you should either push to change the wording of the amendment or if urge people to vote against it. That this particular amendment could lead to SSM was not inconcievable. A flyer went around to every household in Massachusetts warning this was a possible outcome. For example, some supporters of the Federal Marriage Amendment say it won't outlaw civil unions. I say if that's not their intention the should change the wording to make that clear. And as Feeney illustrates even without an ERA and even without direct reference to gender, some laws are questionable.

Finally I'm not blowing raspberries at anybody. I fully support the right of people to seek amendments and even to bring this suit in court. I just think the amendment is a terrible idea and the suit has absolutely no merit. And you know what, the original district court judge disagreed with me about many aspects of the case. He read the Guarantee Clause to mean something I don't think it should be mean at all. Something I don't think the ratifiers intended. Still, I don't consider Judge Tauro a tyrant. I just think he's wrong.

Ben Bateman

Lucia: "But Ben... you said people thought the amendment might force SSM when it was proposed, discussed and ratified. Wouldn't that suggest that many voters believed it would do exactly what it is doing,accepted that fact and intended that consequence?"

The people who said the ERA would lead to SSM voted against it. In interpreting any law, we look at the intent of those who voted for it. Those who supported the ERA claimed that it would not create SSM. Had they not done so, it probably wouldn't have passed.

The supporters didn't just say that SSM was an unlikely result of the ERA. They said it was ridiculous and the product of conservative paranoia.

The reason a particular series of words is part of a Constitution or statute is that some group of people voted for it. Their approval is the only thing that gives those words legal force. If the words involve some ambiguity--as words always do--then their intent is the proper way to resolve the ambiguity. Anything else is government by word games.

lucia

Uhmm.... but when I vote on a referendum, I listen to both sides. I consider the "risk" of something. Had I heard the conservatives say that it might lead to SSM, I would have considered it possible that the conservatives were, in fact, correct.
I would be perfectly aware that the amendment would be interpreted by the courts at some later day. I would have then voted for the amendment even though it was clear to me that the SJC might later decree that SSM was valid.

The topic was discussed. So, why would you think the voters in Mass, didn't basically decide that assuring equal rights was more important than avoiding SSM?

Galois

In interpreting any law, we look at the intent of those who voted for it.

In interpreting legislation we often do that, but it is much more difficult to do with referenda, in part because voters don't give floor speeches and also in part because there are many more voters than legislators. The voters obtained the following official information:


The proposed amendment would provide that equality under law may not be denied or abridged on the basis of sex, race, color, creed or national origin. This amendment adds one sentence to Article I of Part of the First of the Constitution which now contains an individual statement of individual rights, including the right to enjoy and defend life and liberty and the right to acquire and protect property.

Now the Massachusetts Taxpayers Foundation did mail out a pamphlet to the voters saying it would lead to "homosexual marriage", but there is no reason to think that the voters were intending to exclude any particular situation rather than voting for the general principle and leaving it in the hands of the courts to apply that principle to the particular cases that may arise.

Even before the ERA, though, there was a long established general principle that the laws could not exclude a certain class of people without some overriding public purpose.

Those who supported the ERA claimed that it would not create SSM. Had they not done so, it probably wouldn't have passed.

Some supporters might have said that, but I doubt every supporter beleived that. And how do you know it would not have passed without these claims?

Even before the ERA, though, there was a long established general principle that the laws could not exclude a certain class of people without some overriding public purpose.

Ben Bateman

Here's a good article on the basic lawlessness that SSM is bringing us. Once you say that the will of the people doesn't matter, then none of our laws matter if they obstruct the will of the powerful minority.

Gabriel: "how do you know it would not have passed without these claims?"
I'll be happy to dig up polling data on this, Gabriel, but only if it'll change your mind on the overall point. I've already gone to the trouble of digging up hard facts in other threads, and nobody seems very interested in them.

Let's try to isolate the disagreement here. What claim are you making?

1) The people intended the ERA to create SSM.

2) It's impossible to know what the people intended with the ERA.

3) The people intended the ERA to give the courts carte blache to make law on all sexual topics.

4) It doesn't matter what the people intended when they voted on the ERA. The words of the ERA inexorably, obviously lead to SSM, and anyone who didn't realize that back in 1976 was an idiot.

5) A constitutional republic properly works as follows: The people vote for constitutional amendments, and then the judges twist and squeeze those amendments to produce whatever laws the judges want, with no regard to what the people wanted.

If you don't like any of these options, make up your own. Tell me what connection you see between the intent of those voting for a constitutional amendment and the meaning judges should give to that amendment.

lucia

None of 1-5. My option is the people who voted for the ERA intended that the law would: provide that equality under law may not be denied or abridged on the basis of sex, race, color, creed or national origin.

Some had said based on the law, as written, the courts would, read this to legalize SSM.

Armed with this knowledge, the voters of Mass. ratified the ERA anyway. We could groups these voters as follows:

a) Some who voted for the law and actively wished for SSM.
b) Some who voted for the law thought SSM was acceptable but weren't clamoring for it.

c) Some who voted for the law disliked or opposed to SSM. However, they wanted the priciple of equality sufficiently to accept or put up with the possiblity of SSM.

d) Some who voted against it who might have have voted for a similar law-- provided that it had included a caveat banning gay marriage.
e) Some would have voted against the law even if it had been modified with a caveat banning SSM.

The group (c) and (d) would have constituted "swing" voters. Some in group (c) might not have voted for the bill had SSM been a certainty; some in group (c) might have voted for it anyway. Group (d) might have voted for the ERA had the legislators included a caveat banning application to marriage.

We could speculate on why the detractors who believed the ERA, as written, would lead to SSM did not insist on the caveat. Possibly, they all fell in group (e) and intentionally choose a version of the ERA that would legalised SSM because they believed group (c) was small and group (d) was large. That is: maybe they thought that risking SSM would cause the ERA to fail.

We don't know what any individual voter thought. We don't know why the legislators wrote the bill as they did.

However, it was written as it was written, the interpretation that it would lead to SSM was aired, and the voters ratified the ammendment. It turned out groups (a),(b) and (c) all voted for the amendment and it passed.

This is exactly the same as what occurs in every referendum or bill submitted to the voters.

Different people vote for laws for different reasons. In the aggregate, a law was written that people knew could be interpreted to require SSM. The detractors of the bill told the voters the law would lead to SSM. The voters approved the the ERA anyway.

The people who thought the law could legallize SSM turned out to be right. Now, evidently, you are saying the Justices are acting tyrranically for interpreting the bill to mean what people said it would mean when it was written and submitted to the voters!

Galois

I agree with basically everything Lucia wrote in her last column. (None of the above, intended it to mean equal protection, etc.) I would only note that the amendment itself did not necessarily directly lead to SSM. Even before the ERA there was an equal protection clause in the Constitution and the exclusion would have had to satisfy a rational basis. I believe the ERA did two things which indirectly led to SSM. First, it lead to other changes in the law of marriage which made marriage egalitarian thus eliminating possible justifications for the gender requirement. Secondly, it helped to establish certain legal principles like the inability to draw on gender based stereotypes in justifying a statute which made a defense of the status quo more difficult.

As for the hard facts, I would be interested in any data you could provide for what percentage of people fell into each of the categories (a) through (e) above. It would not change my mind about what the intention of the amendment, but they would be very interesting. I should note that those numbers (if they were ever available) were not submitted in court, so one can hardly blame the SJC for not relying on them.

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