Pressing the flesh
Silbert says ditch the amendment
Many strong supporters of same-sex marriage seem to be wavering on the issue of killing the current initiative petition for a constitutional amendment to ban same-sex marriage by any means necessary or putting it to an up or down vote a vote marriage equality advocates say theyd lose. Democratic lieutenant governor candidate Andrea Silbert is not among them. In an Aug. 3 debate on NECN between Silbert and her opponents Tim Murray and Deb Goldberg, the candidates were asked whether or not the Legislature should put the initiative petition to an up or down vote. Murray, the mayor of Worcester, and Goldberg, the former chair of the Brookline Board of Selectman, both have exemplary records on LGBT issues and are committed marriage equality supporters; both said the Legislature should vote on the issue. Silbert, the founder of the Center for Women and Enterprise, disagreed. “I think this issue has been settled; it was settled by the courts, we need to move on, so no,” she told debate moderator Jim Braude. Similarly, in an NECN gubernatorial debate last month, Democratic Attorney General Tom Reilly, a marriage equality supporter, said the Legislature should take a vote on the proposed amendment. Deval Patrick expressed his preference that the Legislature not vote on it. Chris Gabrieli refused to answer the question.
Elaborating on her comments in an interview with Bay Windows, Silbert makes an argument that seems to have gotten lost amid public chastisements that legislative proponents of marriage equality should play fair on the issue (never mind “Let the people vote” mantra put forth my gay marriage opponents): Its not really a good idea to put a civil rights issue that has already been settled by the courts to a public vote. “It really concerns me that the way our system is set up we have checks and balances and the majority is not to vote on various things that take rights away from the minority,” said Silbert. “So that is my big concern with this ballot amendment.”
Silbert didnt want to discuss the way in which shed like to see the Legislature dispose of the initiative petition. “Im not going to get into the procedures,” she said. “I think the big issue that weve got to talk about is the courts have ruled. Weve got to move on. MassEqualitys position is that it shouldnt go forward and I echo that position. I think that the court has ruled, this has come forward once before, theyre putting it forward yet again and I dont see that it needs to move forward any further. I think that the issue has been done and resolved.”
Silbert also has no time for the “Let the people vote” argument. “We do have the courts here to protect us from the tyranny of the majority,” she points out. “I think we need to keep the conversation there because if we devolve into this procedural discussion I think were losing sight of the major civil rights issue, which is that our constitution, our system of checks and balances is set up just so something will not go before the people of this nature. So I think that the other side has successfully pulled it down so the conversation is all about procedure. It isnt about procedure. Its about protecting civil rights.”
that I think Silbert, Patrick, and anyone else who thinks the legislature shouldn’t vote, are wrong. Main reasons: (1) the Constitution requires a vote, and bad things happen when we tolerate, to say nothing of encourage, legislators to ignore the Constitution. (2) Not voting will not settle the issue, and will not allow us to “move on.” In fact, that is the best way to guarantee that we can’t move on, because it gives maximum ammunition to both the in-state and out-of-state crowd who say that gay marriage was imposed by elitist judges and that its backers are using back-room tactics to defeat an initiative amendment because they haven’t got the votes to beat it the right way.
David,
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As I hope you know by now, I respect you and your work tremendously. That said, this is one place where we part company.
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Basic human and civil rights should not be subjected to a popularity contest.
That said, the difficulty I see with that argument is that it is basically circular. You and I may, and do, believe that the right of gay people to marry is a basic civil right. But, obviously, there are people who disagree – quite a lot of them, in fact. Who decides?
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The courts, you say – and they have spoken. Ah, but what is the basis of the court’s decision? The words of the state Constitution. But under MA’s constitutional system, the words of the Constitution are ultimately under the control of the people, not the judges, because Article 48 allows the people to change what the Constitution says (with certain exceptions that, as you know, the SJC held don’t apply here). So, if the people decide to change the words of the Constitution, the “rights” that that document guarantees will change as well.
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Therefore, to say that the courts have settled the issue just begs the question. Sure, the courts have settled the issue based on the language of the Constitution as it exists right now. But since it is open to the people to change that language, it cannot be the case that the issue is “settled” once and for all – until, that is, the process by which the words of the Constitution can be changed has been allowed to play out. If the legislature kills the amendment because less than 50 legislators vote “yes,” it’s done – the process has spoken. But if they use parliamentary maneuvers to avoid a vote, it looks illegitimate to a lot of people (myself included, sadly).
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Am I being overly legalistic here? I don’t think so. Your point may be that the right to marry is a basic civil and human right in a broader moral sense, not just the legal sense. Fine, but that’s a separate issue – and again, reasonable people can and do disagree on it, and there’s no ultimate authority to settle philosophical disputes so it can’t be finally resolved. What we are talking about here is a legal process constrained by reasonably well-defined rules. Those rules are in place for good reasons (to avoid the shameful treatment of the health care amendment, for instance). Subverting them, even for what you or I may consider a noble cause, calls into question the legitimacy of the system, and frankly does nothing to end the debate – if anything, it prolongs it. Sabutai’s point upthread is correct, IMHO: abortion has been around for much longer, and as a far more divisive issue, than was necessary – no one in their right mind would call it “settled” in light of what’s happening in South Dakota and on the SCOTUS. I’d hate to see the same thing happen here.
sabutai’s comment is downthread.
God, the people who happen to be in a majority on the Court at any given point in time, astrology? I personally prefer our Constitution and the people of this state.
This story reminded me of abortion — more than 30 years later, it’s a big issue that Republicans use. It’s successful in large part because it’s been decided “by activist judges” while the people never had a voice.
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As we’re seeing in South Dakota right now, and we see in poll after nationwide poll, people are pro-choice, even to an extent in South Dakota. If a technical maneuver keeps marriage equality off the ballot, this issue will stay alive thanks to Republican noise, just like abortion has.
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I say this as a passionate supporter of marriage equality who was in the State House the first day of debate on the first amendment.
As long as Republicans can draw votes by prodding the negative feelings about homophobia in the public, they will use whatever means they can. I’m starting to understand how the Prohibition amendment got passed.
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This amendment is too silly to be accorded respect.
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Nip it now.
why can’t we get 151 legislators to vote against it? That’s the right way to put a well-deserved stake through this thing’s heart.
the Republicans would bring it up again.
That’s why it’s silly.
The issue loses much of its rhetorical force after a political consensus is arrived at through legislationm, or the voting process. Even now, most of the anti- message is focused on unelected judges forcing policies doen the throat of an unwilling populace. Take that issue away, and you satisfy those who oppose the policy because it was arrived at via a short-circuiting of the political process, and are left only with bigots.
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In other words, you have won a victory in a less than desirable manner. You have an opportunity to consolidate it through a process that will give the policy actual political legitimacy. Why wouldn’t you take it?
even when they lose elections… When Clinton beat Bush I, they used every means they could to unseat his Presidency, including impeachment over something that was neither a high crime nor a misdemeanor. They maintained an attitude that he wasn’t a legitimate president.
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When somebody whines no matter what, there is nothing to be gained by any concession.
You’re an infrequent contributor, but I’d have to say this was a super post.
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I’ve been truly undecided in the LG race. Part of that is that I’ve been so active in the Patrick campaign, I wouldn’t want any of my personal choices to appear to have the imprimatur of that campaign.
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But mostly it’s just that I genuinely think that all three candidates are equally appealing.
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I have to admit that your post added a point in Andrea’s favor to my calculus. Thank you for your well-written explanation.
I think Andrea has made alot of decents point in her quest for LG. I firmly believe that she and Tim Murray are head and shoulders above Goldberg. Saying this in my opinion Murray’s ability to hit the ground running is a reason to consider Tim. He has worked with all levels of government and clearly understands how to work collectivley as a team player in order to keep critical services following.
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In the end I think Murray’s experience is a important factor considering how the last three Governor’s have left their post. some to think about should something happen to our new Governor.
Can you just cherry pick the decisions you agree with?
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I will return to MY argument, that this will never go away, and will cannibalize legislatve time, until the people’s petition is answered as they request.
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IF the electorate is alowed to vote, I honestly think the amendment will fail. It SHOULD fail. But until the 17,000 plus signers of the petition are allowed to have a vote as prescribed in our Constitution, this will never go away and never die.
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And for those who argue that a human right should never be subjected to a vote, I will answer that women’s suffrage – created by a vote – has never been questioned again since its inception, and that abortion rights and gay marriage – created by court decisions – have never ceased to be questioned.
I have two good friends whose names are on the petition. They were lied to and coerced into signing something that is abhorrent to them. They are not alone. When illegal methods are used in the petition process, I think we should question the process first before following through with a proposed change to the Constitution. There are sufficient sworn statements to put the whole petition process into question.
However, IIRC, well over twice the required number of signatures were filed. Is there ANY indication that fraud on that scale – like 70,000 signatures – is at issue here?
if there is any way to verify the percentage of signatures that were obtained under under false pretenses. IMHO, they should be required to start from scratch.
I would buy a misunderstanding the FIRST 100,000 signatures, but by the second, the issue was well known and in fact the Know Thy Neighbor bullying campaign had been started (yes, I know, entirely legel as the petitions are public documents, but the site has been put to some very dubious uses). By the time the SECOND 70,000 were gathered, it would take exceptionally dense people to sign and not understand.
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On the plus side, your friends aren’t bright enough to vote – or ARE they?
Do you think every issue that gets enough signatures should go to the people? If yes, why do you think the Constitution allows a vote by the legislators to approve — two votes, actually — at all?
“There is a tradition that, on his return from France, Jefferson called Washington to account at the breakfast-table for having agreed to a second chamber. Why, asked Washington, did you pour that coffee into your saucer? To cool it, quoth Jefferson. Even so, said Washington, we pour legislation into the senatorial saucer to cool it.
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IMHO, that is why TWO votes, spanning four years, are required – to ascertain that the petition was not done in haste, that the issue is still germane, and that the electorate do indeed still desire a vote.
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I would say that 8+ years of endeavor – similar to the benchmark required to Prop. 2 1/2 – would indicate that the people still want a vote, and that the Legislature outght not deny it to them.
to ascertain that the petition was not done in haste, that the issue is still germane, and that the electorate do indeed still desire a vote.
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The role of the legislature is not to try to guess what “the electorate” wants. It is to exercise their independent judgment on the merits of the petition. The only way you can figure out what the “electorate” wants is to have an election, and that is why – if two successive legislatures approve the petition – it does in fact go to the electorate. If the role of the legislature were as limited as you postulate, why not just require two separate signature drives at different times?
for the proposal presently before the leg.
With the infamous Finneran-Traviglini amendment? (It may have had another name – so many were flying about to amend the petition that I lost track, although I DID enjoy the spectacle of Tom Finneran having his hat handed to him by the Legislature on his FIRST self-congradulatory amendment).
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THAT’S your answer David? It isn’t the SAME petition becuase the LEGISLATURE changed the wording, ergo, they haven’t REALLY gotten signatures twice?
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This will NOT go away – people will keep collecting signatures until we are both dead and buried. You know that. This is a REALITY BASED SITE, isn’t it? Why not face up to the reality, and allow people to vote, before the pariamentary maneuvering goads them into voting FOR it out of spite?
I’m actually quite confident that gay marriage will be accepted and cease to be controversial after we get some distance from it, just as women’s suffrage was (and the end of slavery), while abortion will continue to be a troublesome controversy for as long as the conservative movement is alive and kicking, regardless of how it’s decided.
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Gay marriage is very controversial now because it hasn’t been achieved yet. We’re just one state. We’re in the lead-up to winning this right, not looking back after it’s been won and seeing that people are still attacking it.
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(my theory on why some progressive victories on basic rights are settled and lasting, while others won’t be, is too long to be included in this comment.)
I support both of them for their respective nominations, but they are wrong to say the legistature shouldn’t vote on the amendment. Protecting human rights is important, but having a functioning constitutional democracy is part of that. The legislature should vote, and vote NO. But if 25% of them approve it, as per the Constitution, come 2008 I am sure that a large majority of us will vote to preserve equal marriage and vote against the amendment. It would be a “tyranny of the majority” if a simple majority of the legislature continues to block this (and the Health Care amendment!) as protecting minority rights includes protecting minority political opinions, even if we disagree with them. So as much as I oppose any attack on civil rights, the legislature must carry out their constitutional duties.
the legislature must carry out their constitutional duties.”
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I agree with this comment and actually have been at my wits end for over two years about how these 2 hugely important constitutional amendment items (the attempt to ban gay marriage and the attempt to establish a constitutional guarantee, or right, to healthcare) have been pitted against each other in the ConCon political process. I vehemently oppose banning same sex marriage and have been supporting it as a human right and a civil right, just I as view access to healthcare as a human right and a civil right.
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At the July 12 ConCon I wore a “Make Health Care Our RIght” Tee-shirt with “Marriage Equality” stickers on the front and back.
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I don’t want the DOMA item to get 50 votes. I do want the Health Care Amendment (which I helped launch in 2003 and collected hundreds of signatures for, along with lots of other nurses, btw) to get its 50 votes. It’s been very very disturbing to see these two progressive issues end up pitted against each other in a perverse way.
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Then recently I spoke with SOS candidate John Bonifaz who stated he believes there is solid legal ground for the legislative leadership to delay the vote on the DOMA gay marriage item until a more thorough investigation of the fraud committed during the signature collection process is conducted (implying that the investigation and actions that SOS Galivn undertook are inadequate).
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What do others think of this as a feasbile strategy? Would Trav and DiMasi ever go for it?… BTW The recent Chapter 58 health reform law is so full of holes that we need the Health Care Amendment now more than ever.
investigating, and with great likelihood, exposing an illegal and unethical strategy that appears to have been used to collect thousnads of signatures to put the DOMA amendment on the road to a ConCon vote and on the statewide ballot?
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And then even if the DOMA amendment ends up going forward, the true colors of the amendment’s proponents will have been rightly exposed and that might impact how both the legislators and statewide voters vote on it.