Want to know, as BMG regular Michael Forbes Wilcox asks, “why the left is losing”? Just read The Phoenix’s editorial on the anti-marriage amendment scheduled to come up in this week’s Constitutional Convention.
Basically, the editorialists at the Phoenix are really really mad at everyone who’s against gay marriage. And because the editorialists have decided what the answer should be, and they’re really really mad at people who disagree with them, that ought to be enough for everyone else in the state. Honest to God, can they possibly think they are going to convince anyone of anything, or advance their cause even a teensy bit, with crap like this?
Here’s the bottom line of the editorial:
[T]his talk of the people needing a voice, of the legislature needing to act, is vile hypocrisy.
Ummmm, let’s see, how shall I describe that? Oh, I know: BULLSHIT. Let’s recall, shall we, the words of Article 48 of the state Constitution:
A proposal for an amendment to the constitution introduced by initiative petition shall be voted upon in the form in which it was introduced, unless such amendment is amended by vote of three-fourths of the members voting thereon in joint session, which vote shall be taken by call of the yeas and nays if called for by any member.
Folks, a vote on a constitutional amendment that is properly before the legislature – like this one – is not optional. It is constitutionally required, and anyone advocating parliamentary maneuvers to avoid a vote is advocating nothing less than open, flagrant defiance of a constitutional imperative. Sorry, but those are the facts.
One of the editorial’s targets is AG Tom Reilly, whose position is that “the legislature should vote, but I’d vote no if I were a legislator.” The Phoenix’s pathetically hilarious (or is it hilariously pathetic?) response to that position? “Those are weasel words,” proclaim the pious editorialists. Hmm. I guess the words of the state Constitution are “weasel words” too, since that’s what they require. Of course, the editorial doesn’t actually mention the constitutional requirement for a vote, probably because however clever the editorialists may be – and if you ask them, they’re very clever indeed, no doubt – they’re not clever enough to find a way around the plain language of Article 48.
Unfortunately, the editorial goes beyond willful ignorance of the words of the Constitution. It gets personal:
Where would the civil-rights movement have been if Tom Reilly had been in the fight? Itâs a safe bet that the schools of Little Rock, Arkansas, still would be segregated….
Reilly and OâMalley are latter-day Jim Crows: Reilly because of his political desire to have it both ways, and OâMalley because he is promoting redneck theology as a public practice.
I’m putting aside for present purposes the unnecessarily vitriolic criticism of Cardinal O’Malley (and Mitt Romney, who gets much of the same), since at least those guys are wrong on the merits of the issue. But to call Tom Reilly a “latter-day Jim Crow” and an apologist for segregation just because he wants the legislature to carry out its constitutionally-mandated obligation to vote?
That is a disgrace.
Usually when a person with a government position runs for office they resign. As I undertood it, it has nothing to do with them, but various laws that say they must resign. Why is Tommy Boy still around as AG? Even if it is legal on his part, it still seems… I dunno… wrong?
Didn’t resign. Are you upset with him too. There is no rule that Reilly needs to resign, and absolutely nothing wrong in my view with his remaining as AG while he campaigns. He may put himself at a disadvantage in the race because he has a full-time job in addition to campaigning, but that is his call. He still seems to be holding down his 9-5 so far as I can tell, despite the demands of the campaign. Maybe that is why he hasn’t found time to be interviewed yet by your trusty Editors here at BMG 😉
I think Kerry should have resigned. I find myself under the Hatch Act restrictions as many here may be. It’s just me being curious why he doesn’t fall under similar restrictions. Perhaps legally he doesn’t have to, but I would think that similar reasoning would apply to his case as everyone else’s.
I actually have trouble thinking of any sitting office-holder who resigned to run for higher office. Will you provide an example?
Yep, Bob Dole did–thanks for the reminder. But he certainly wasn’t legally required to. If a sitting Senator had to resign in order to run for President, the Mr. Kerry wouldn’t be in his position right now. And in 2000, not only did Joementum Lieberman not leave his Senate seat, but he ran for re-election to it as he ran for the vice-presidency!
in order to run for Middlesex DA?
I don’t know about Leone, though he isn’t coming from elected office.
Leone, as an appointed federal prosecutor, had to resign his post in order to run for office. But in general, elected officials need not resign their current office in order to seek a new one. Usually the only disqualification is holding two elected offices simultaneously, so that taking the oath of office for one effects an automatic resignation of the other (if the official hasn’t voluntarily resigned first).
And if you’re Tim Toomey, you hold positions on the Cambridge City Council and as a state rep.
Good grief.
There are MANY legislators who are also selectmen or planning board members, etc.
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Only my very own Senator, Rob O’Leary, required special legislation so he could hold two STATE JOBS at the same time – Senator and tenured profesor at the Mass. Maritime Academy.
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Wonder what HIS pension is gonna look like?
Why do I now have the bizarre desire to top THAT? let’s see…Bill Smith is a city councilor, state rep, local dog-catcher, DA, youth basketball coach, particle physics researcher at Goat State University, and Mitt Romney’s personal groomer!
That is a thing of beauty. Thanks for that link!
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It is so sad that even people on the same side of this issue (ultimately) have to disagree about this.
Stumping for Reilly?
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That he simply gets roped into all the vitriol that every other person who doesn’t deserve it is no problem for me. Nor is it really the fault of the Phoenix, they are just following the lead set by others. Do you have the cajones to “out” the people they deserve it? Probably not.
I’m actually not much of a Reilly fan, as you’d know if you had been paying attention to what I’ve been writing here for over a year. And your comment about the Phoenix’s editorial not being the Phoenix’s fault makes no sense to me – care to clarify? While you’re at it, you could clarify your misspelled “cajones” comment (it’s “cojones”) as well, since again I don’t understand who or what you’re referring to, or what I supposedly don’t have the “cajones” for. But I’ll wager that I probably do.
There is nothing wrong with a vote on marriage equality. People who support it should get out there and work to make sure the amendment passes. We live in a democracy, after all: we decide important issues by voting on them. If the Phoenix is upset about Jim Crow, why don’t they editorialize about that, rather than lump different issues together in an ineffective attempt to mask the underlying weakness of their argument. I’m surprised they didn’t Reilly and O’Malley for the violence in Darfur, melting glaciers, and the poor performance of the US team in the World Cup while they were at it.
to the votes following this decision:
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I didn’t take enough history in college perhaps, but I don’t remember the campaigns around this “separate but equal” stuff. If “we decide important issues by voting on them” I’ll need to do a lot more reading about now all the important civil rights goals were attained, and the outcomes of all the votes. Breakdowns of the votes by party would be especially welcomed.
It probably wouldn’t be right to bring it up again at this time, what with Bush’s new justices and all.
some people think this whole equal marriage thing is a weak decision.
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I don’t think the strength matters for this point–I’m just looking for where it got voted on.
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I’m seeing in Wikipedia (yea, I know, but I don’t have any relevant texts at hand) that some people got all activist and shut down some schools, but I can’t find the evidence of the voting. All I can see is this:
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I just need to see the outcome of the votes right now.
are these on the Civil Rights Act of 1964. Brown, impressive though it was in many ways, did not end Jim Crow in the South. The Civil Rights legislation passed by Congress in the 1960s was, in the judgment of this historian, much more significant. I stand by my statement that we decide important issues by voting on them. Here is some further reading that might interest you: The Hollow Hope: Can Courts Bring About Social Change? by Gerald Rosenberg (he thinks not, incidentally). Just as a point of curiosity, if you don’t think we should solve important issues by voting on them, what alternative system do you propose?
I think we should stand on correct Constitutional decisions. But you never know, maybe after some reading about how this vote on Brown went I’ll change my mind.
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And, of course, how it goes this week.
But it was a vote on aspect of the more general system of racial segregation that blighted parts of this country in 1964.
That Civil Rights act stuff, 10 years later, had a much larger bucket of stuff–women’s rights, voting rights….No, I guess I meant the vote on the single issue in Brown. Please specify that. We have apples and oranges here, I think.
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And that is so sad that you think the courts don’t work. I just read the Amazon abstract, of course, but if that’s true why are we even bothering with the courts? Who needs that branch of guvmint anyway?
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I have some serious reading to do. Thanks again!
This may be the point you’re trying to make, but from what I know of it, there WAS no vote on Brown. Votes in state legislatures on its implementation at various times, I suspect, but no vote on Brown. One generally only votes on Sumpreme Court decisions if they come up as Constitutional amendments, as is happening now in MA.
The theory is that people should be able to vote directly, or via their elected representatives. It is worth noting that the original petition sponsored by Phil Travis never came to a vote because it was postponed by Birmingham and amended by Finneran. This current petition is a citizen petition, which needs fewer votes to go to the electorate. They are similar, but not the same.
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I not going to talk about women’s suffrage again – but the handicapped are protected under the ADA, and voting rights under the VRA, and civil rights under the CRA. NONE of them are protected by a court decision, except those in response to those laws.
What about inter-racial marriage? Wasn’t that banned solely by a decision of the US Supreme Court – Loving v. Virginia? There was no legislation needed. I really don’t see any difference here.
There is something wrong with a vote on marriage equality. That is, it’s morally wrong to ever put questions of equal basic rights up to a vote. If a majority can vote them away, rights mean nothing.
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However, I also agree with David and you on how ill-informed, -reasoned and -argued this editorial is, and I agree that it’s better for the anti-gay amendment to pass at this convention than to be blocked by parliamentary maneuvering (though also better yet, of course, for it to fail).
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The thing is, it’s morally wrong for there ever to be a vote on issues of basic rights, but many morally wrong things cannot be prevented by law, because the solution would be worse than the problem. In this case, there is simply no way to eliminate the possibility of a sufficiently large and sufficiently determined majority trampling the rights of a minority, because there’s never a way to completely eliminate that possibility. If laws can be passed, then bad laws can be passed, but they can be overturned if they conflict with the constitution; and if the constitution can be amended, then bad amendments can end up becoming part of the constitution. All we can do is what we have already done: establish procedures requiring that the people be really sure, and stay sure over a significant period of time, that they want to change the constitution; and try to build into our education and culture an understanding of and respect for the mechanisms of government.
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Bad laws can be overturned or repealed, and bad amendments can be cancelled by other amendments, it just takes a long time. The alternative would be an immutable constitution, with no provision for amendment, and I don’t think very many people believe we’d be better off living our lives solely by eighteenth-century principles.
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So laws that deny same-sex couples the right to marry are morally abhorrent, not only because they’re “legislative gay-bashing,” to use Sorkin’s term, but because no question of basic rights should ever be up for a vote; but if they are proposed we should fight them and vote against them, not keep them off the floor with procedural tricks. Constitutional amendments taking away rights are even worse, but if the people who want one have gone through the system and followed the rules then we’re obliged to also follow the rules, and vote — against it, but vote. “We” here can be construed, of course, either as “the legislature,” which I’m not actually part of, or “the people generally,” which I am; it’s the same argument either way.
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If we can’t beat this thing by following the rules, then that doesn’t mean we should bend or break the rules in order to beat it, it means we’ve lost. That’s how it goes: sometimes you lose. But as long as everyone keeps playing by the rules, losses aren’t forever, and you can come back again and win another time. To claim we need to go outside the rules in this case, even though it’s morally wrong to hold a vote on human rights, is as much as to say we only believe in our system of government when it happens to go our way; which in turn is as much as to say we don’t believe in it at all.
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Let me repeat that: our government is a representative democracy, with established procedures and rules for making law and amending the Constitution. If we don’t believe in that system just as much when the other guys win as when we win, then we don’t believe in it at all.
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The integrity of the process is paramount. It’s far more important than which way a particular vote goes. As long as the integrity of the process is maintained and all sides keep their trust in the process’s essential fairness, then the process affords redress in the future.
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Reilly is dead on, on this one: they should vote, and they should vote no. Not because “the people’s voice should be heard” on the subject, not because of “activist judges” thwarting the “will of the people,” or any other such claptrap as the right is fond of; the “will of the people” shouldn’t matter a damn when it comes to equal rights. But they should vote because people followed the rules getting up to this point, so now we have to keep following the rules. Otherwise the whole system falls apart.
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I hope the amendment doesn’t pass. I don’t think it will, but I don’t really know. If it does pass this time, I don’t think it’ll pass at the next convension; and if it does pass then, I don’t think it’ll be ratified by the voters. And if it is, then we’ll have taken a massive, disgraceful step backwards, but it’ll be distance we will eventually make up. Even many of the staunchest opponents of equal marriage recognize that all they can do is slow it down, not stop it. And every time this amendment comes up for a vote, every legislator who supports it has just gone on public record as thinking that gay people are less fully human than straight people.
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Huh. Where’s this soapbox come from? I was sure I was just standing on the floor when I started, and I don’t remember stepping up onto anything. Oh well.
Was voted on to some degree, and by some people, if that makes you feel better. Per Winston Churchill, âIt has been said that democracy is the worst form of government except all the others that have been tried.â Of course, the great man also said, âThe best argument against democracy is a five minute conversation with the average voter.â
I mean, that’s how it got to be the Constitution.
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Declaring things morally wrong is a tricky business for me to have embarked on, of course, especially at this hour of the night. The first ten amendments to the Constitution have to do with basic rights, and they were voted on. Would I call that morally wrong?
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Well, sort of, in a moral perfectionist sense where anything that falls short of an ideal of what’s Right is therefore at least somewhat wrong. But that’s probably not a very useful formulation. Obviously a perfect, complete enumeration of all the rights people have, or should have, could not have been and never will be produced, so that’s why we have an amendment process and that’s why we have the 9th Amendment. Voting on the Constitution and the Bill of Rights was only morally wrong if measured against impossible things.
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More to the point, the notion that just because we single out particular rights for protection doesn’t mean we don’t have any others is fundamental to our style of government and political culture. So I think there’s a difference between a vote on whether to add something to the list of explicitly protected rights (the ERA comes to mind), and a vote on whether to deny rights to a certain class of people. This is what I meant when I said that voting on rights is morally wrong. Even advocating for there to be a vote on whether to take away the rights of some is wrong, because it’s based on the idea that rights are something negotiable.
but I did some reading and some thinking, but I just am not getting it.
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On the Civil Rights Act vote (1964): It really seems to me to be a different kettle of fish. It would be like having the legislature vote in 2014 on everything from letting single people have kids, letting unmarried couples have kids, to letting infertile couples marry, to letting past-child-bearing-age people marry. A much larger bucket of marriage issues, dealing with a bunch of the only-breeding-hetero-marriage-for-kids sort of position that seems to be the other side’s contention. I think there would be broader support for that larger bucket, I have to admit. And I’m checking the Constitition for where this Civil Rights Act went in, but I don’t see it. Poll tax in ’64, but not full civil rights. Maybe the Wikipedia entry needs updating….
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I know I don’t have a legal mind and education, and I quite frankly haven’t thought through all the paths I would take to restrict other citizen’s rights. But it seems like there must be other paths….
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On the Courts: I have to disagree on the success of the courts. I have had reproductive freedom for my lifetime because of Roe. That looks like success to my uterus. I know they are chipping away at it in some places (such as Mississippi), but they didn’t go after the Constitution head on like we are seeing here. So I guess that’s a question: do we have to let them go at the Constitution? Are there no other means for them? Couldn’t they get some small “chipping” laws passed at the legislature–such as we won’t let gay guys meet, we won’t let them hold hands, we won’t let them live together…before we have to go all the way to banning the right to marriage?
Really? You want to put free speech up for a vote? I’m sorry, Bob, but it’d lose. In a heart beat. Just look at the illegal-wiretapping scandal… the one where, for a good, long while, poll after poll was showing the American public would support it.
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Or, lots of those nasty people who we don’t want to hear. They’d be banned from talking, civil rights be damned.
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Or equality in voting. That wouldn’t exist either; we had to force it on the South. And Democrats have sufferred ever since.
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I’m sorry, but I’m forced to DISAGREE with Dave on this. Stop these anti-ssm nuts at all costs. We cannot risk putting Civil Rights on the ballot in Massachusetts because it just could very well lose. That’s why we don’t vote on them.
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As far as I’m concerned, this debate should be over.
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You’ll note DAVE DIDN’T MENTION THE FACT THAT THIS WHOLE AMENDMENT IS ILLEGAL IN THE FIRST PLACE. But the hypocrit Tom Reilly didn’t care about marriage equality then.
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I’m here, I’m queer and someday I’d like to get married. I’ll go through fire and brimstone before I let the masses stirred by demogogues take my rights away from me. I WON’T let that happen.
is before the SJC, and it will be decided fairly soon. Obviously, if the SJC concludes that Reilly was wrong to certify it, it’s game over. My guess: the SJC – the very same one that decided Goodridge in the first place – backs Reilly on the certification decision. But I could be wrong – we’ll see.
I honestly think the whole business of declaring something not ‘right’ for a vote comes of eliminating civics from public schools, and telling people they have ‘rights’ instead.
If people start thinking they have rights, who knows what will happen!?
Has been going for quite a while, at least since ancient Greece, and arguably for quite some time before that, so if that’s your concern it’s not a recent development.
Apply to different issues under our system, as you know. I’m not saying that a simple majority vote should determine everything. Constitutional amendment, for example, requires a different level of approval. But I definitely prefer having a system that reflects the will of the people rather than … what … the will of God, and defined by whom? You still haven’t described what system you would prefer, if you don’t like voting.
Wasn’t wiretapping, which is legally defined as listening into electronic conversations.
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The NSA program was databasing of national and international telephone numbers with no recording of any conversation, nor with any associated account information accessible to the program operators without NSA/CIA/FBI legal clearance and subsequent FISA authority.
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Too bad you didn’t bother to read any of the WaPo or NYT articles beyond the subhed or first paragraph.
This all began with the Phoenix editorial, and the “need” to “put things to a vote” either by the ConCon or the people. That really is a lot of crap. The constitution requires a vote, but only if the members of the convention follow appropriate rules. If they lose on a rules game there are three results.
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First, lots of lilly liberals will say it’s right for the 50 who vote a deceitful amendment to sustain that amendment for a public debate. Second, there will be another convention next year to do the same thing. And third, the particularly nasty, out of state advocates who have mounted this issue will have gotten a substantial bounce from those who think parliamentary tactics are somehow more undemocratic than a 50 vote minority.
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The rule of politics is to win, and they will have won all kinds of idiots who, like Bush, want “an up or down vote,” and believe that democracy is only a matter of those votes. That’s hooey. Its a three part government – of courts, executive and legislature – for very good reasons, including the parliamentary limitations on good or bad legislation. The game of the 50 vote minority is no less or more “democratic” than the game of parliamentary tactics, and there is no mandate that those tactics are unavailable to opponents.
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OTOH, I think an up or down vote in THIS state would be just fine, if, and probably only if, there were something like a Bonifaz rule in place regarding the financing of such a vote. Too many progressives either don’t know or blithely ignore the insight and ingenuity of his NVRI case that mandates equal access to all voters, regardless of spending. That principle, maybe in the 13th Amendment, would mandate a parity of access to media regardless of who is spending. A ballot initiative like gay marriage will attract millions of fascist dollars, which would, if NVRI were to win, generate the same amount of media time as their millions buy, but at no cost to the opposition. Lacking a fair and balanced ballot and campaign, killing a plebiscite on anybody’s rights is fair game if you win, and pretty risky if you lose.
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It’s also pretty obvious that those lilly liberals are not the ones you can rely in a streetfight, and almost as obvious that the opponents are out to generate any credibility they can for a cause as despicable as any that’s ever made it to a constitutional debate. While I don’t agree that gay marriage is equivalent to Brown V Board of Ed, I do agree that it is an issue of human rights, even more than civil rights, affecting children much more than it affects those largely bourgesois monogamous gay parents who want to legitimize the families that create parents of any sex. That ought to be enough to win any plebiscite, if we could ever keep out of state money from screwing up the ballot.
You cannot mean that seriously! The “game” of the 50 vote minority is written into the same Constitution that is the basis for the SJC’s ruling that gay marriage is a constitutional right. On what basis is it appropriate for us, or legislators, to pick and choose which provisions of the Constitution we will respect, and which we will ignore?
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Parliamentary tactics have their place with respect to ordinary legislation. But there is no constitutional requirement that, for example, every bill introduced into the legislature be voted on, and parliamentary tactics are routinely used by legislative leaders to prevent bills that they don’t like from coming up for votes when, if they did, the bill would probably pass. I’m not crazy about that practice, but there’s no legal objection to it. This situation is an entirely different kettle of fish. The parliamentary tactics that are and are not acceptable with respect to constitutional amendments are written right into Article 48 of the Constitution. Ignoring that means ignoring the Constitution, plain and simple. Be very careful when you advocate for tactics like that. When the shoe is on the other foot – and it will be, sooner or later – it will be very unpleasant indeed.
David poses the question – “On what basis is it appropriate for us, or legislators, to pick and choose which provisions of the Constitution we will respect, and which we will ignore?”
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What if you substituted the word “Bible” for “Constitution” above…..
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Many of the people opposed to gay marriage do the same thing every day with their Bible that may or may not occur with the Con-Con on Wednesday – ie; Exodus 21:7 (selling your daugher into slavery is ok); Lev. 25:44 (OK to own slaves from a neighboring nation – especially Canadians -:) ); Lev. 19:27 (not OK to get a haircut)…
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How can they ignore these writings, from the Bible no less, yet insist the legislature may not interpret the Constitution to their own liking?
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Surely, if they can do that with their good book, others can do the same with the Constitution.
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/snark
Effective, both, or neither?
I care not one whit what people choose to do with their Bibles. Their religion is their business, not mine.
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The Constitution applies to all of us. Entirely different. I see no inconsistency there.
that the legislature “must” take up the initiative petition?
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After all, the language says “shall be voted upon in the form in which it was introduced”, which you take as meaning that the petition must be voted on. Nevertheless, it seems an alternative way of reading this is that it is simply stating that the legislature cannot amend the petition unless it gets the 3/4 vote. In short, it is not clear that this is saying that the legsialture must take up the petition at all.
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In any case, this is an excellent example of a constitutional problem that is difficult to solve — by the time the question of what this “shall be voted upon…” language means could ever be taken up by the SJC, the question is moot.
has already spoken on this. The case was called LIMITS v. President of the Senate (decided in December of 1992). By the time the case was decided, it was obvious that the legislature was going to kill the proposed constitutional amendment to impose term limits by repeatedly refusing to vote on it. The Court refused to grant relief, concluding that a court ordering a co-equal branch of government to exercise its constitutional duties would violate the separation of powers. But it was pretty clear that the Court thought the legislature had a duty to vote on the proposed amendment. It said:
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There is no judicial remedy for failure to vote, but that doesn’t mean the duty doesn’t exist.