One of the best pieces of news from last night’s election is this:
A ballot measure that would ban nearly all abortions in South Dakota was rejected on Tuesday…. The Legislature passed the law last winter in an attempt to prompt a court challenge aimed at getting the U.S. Supreme Court to overturn its 1973 Roe v. Wade decision that legalized abortion in the nation.
Instead of filing a lawsuit, however, opponents gathered petition signatures to place the measure on the general election ballot for a statewide vote.
We all know how this was supposed to go. This outrageous law was enacted for one purpose only: to be the vehicle by which the US Supreme Court overrules Roe v. Wade once and for all. But the activists who opposed the law didn’t take the bait. Sure, they could have gone to court and gotten lower courts to strike it down, but that would only have set up the Supreme Court confrontation that the law’s backers desperately wanted. Bad idea.
Instead, the law’s opponents went directly to the people of South Dakota and asked them whether they wanted this wretched law that their legislature had approved. And guess what: they didn’t. Now the law is repealed, and there will be no Supreme Court confrontation (yet). And no one can moan and groan about activist judges thwarting the will of the people.
Therein, I think, lies a message for the ConCon — which, don’t forget, is scheduled for tomorrow, and at which the issue of gay marriage will be taken up. Senate President Travaglini has promised that there will be an up-or-down vote in the legislature on whether to advance the marriage ban to the next legislative session (it only needs 50 out of 200 votes to advance).
Here’s hoping that Trav sticks to that. If advocates for gay marriage want to settle this, they should urge the legislature to vote — and to vote “no” — on the proposed amendment. An up-or-down vote to kill the amendment is a perfectly legitimate, and perfectly democratic, way of dealing with it. There is no constitutional right to a popular vote on these initiatives, as Scot Lehigh and others noted before the last ConCon. And, as the Herald said at that time, “If it can’t get that number [50] on an up or down vote then surely it is not worthy of further consideration.”
If, on the other hand, the legislature uses parliamentary maneuvers to kill the amendment without voting, the cries of an unfair and illegitimate process will ring true. That’s the worst thing that could happen to marriage equality backers.
Now, some might argue that I’m missing the point of the South Dakota story by arguing that the legislature should not send the measure to the ballot. I’d respectfully disagree. What I’m urging is that the democratic process — of which the vote in the legislature is an integral part, not a rubber stamp — be allowed to work the way it’s supposed to. That’s what happened in South Dakota yesterday, and that’s what should happen here tomorrow.
The bar for this sort of constitutional amendment is too low. 50 votes??? That sigature-gathering-for-amendment-vote process should be dismantled, even if it’s legal now. Amending the constitution is supposed to take 2/3 of the legislative vote – the bar SHOULD be high, and hard, because it’s the damned constitution, it should be hard to change or else it means less. This bypasses that protection for our constitution.
…without the petition process?
The SEIU question was a petition for a law, which pretty much bypasses the legislature completely. The marriage thing is a constitutional amendment, in which the lege plays a central role.
I mean, why should we have applauded petitions to leave Iraq or decriminalize marijuana – both manifestly Federal issues and not subject to a state vote – and yet say end the process for issues we disagree with that ARE state matters?
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I am violently against taxpayer funded elections, but I am EQUALLY against the Leg. giving $3 million to Tolman and the bird to everybody else. We should implement Clean Elections so people can SEE it doesn’t work, and then work for repeal.
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Imagine if we had the 90% Dem legislature 26 years ago and they jetisoned Prop. 2 1/2…what your property tax bill would be now?
I think sometimes that people forget why we have government. The end isn’t the democratic process, that’s just a means. The end is that our rights should be secured for this generation and for the next.
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Now, my right to marry — which I view as a natural right that has long been denied to me — vests in me. It is my right. It isn’t a right extended to me by the SJC. Nor is it a right that the Commonwealth can extend to me. Philosophically, it is my right and any government that takes it from me is violating the most basic covenant between a free people and their government.
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Because of that, I don’t believe my rights should be subject to an “up or down” vote by the people, the legislature or anyone else.
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That said, the rules of the legislature are themselves a part of our democracy. Adjourning before business is finished is something that happens all the time as a way to kill pending items without voting on them. It’s no more nor no less a fair a decent way to act on a measure than a “up or down” vote.
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Spin aside, this isn’t a question of “democratic processes” vs. “perversion of the ideals of our country.” This is simply how sausage gets made.
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But you’re wrong to some extent…
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Marriage equality SHOULD be a right enshrined in the Constitution, in my opinion. But every society has to decide what is right and wrong, and to some extent it IS up for a vote by the public or elected officials or interpreted by the courts.
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For instance, in ancient Rome, it was perfectly legal to expose an unwanted infant to the elements in infantcide. They didn’t value children the way we do now (hell, 100 years ago, we had brutal child labor in this country too). Obviously, that value has been rejected by modern society. The same goes for abortion…I’d like to see it never come up for a popular vote; even though generally the population agrees with us now, it seems like an obvious integral right of women to have power over their reproductive rights and why should that group or this group decide it for me?
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Every generation in our democracy has fought for more human rights and equality, but it was often enshrining these things in our Constitution (via legislative AND public votes) that ensure those rights. The Constitution and our laws reflect our values as a society. The reaon we’ve been able to enshrine so many rights despite the unpopularity of some of those rights (gay marriage, birth control, choice) is because of our independent judiciary. All three play a huge role in the process, and are integral parts of the protection of your rights, or the extension of equality.
I meant, at the time the SC made those landmark decisions. Birth control was anathama, as was interracial marriage and so many other things…in the end, only a few holdouts still believe the opposite as the rest of us, but at the time, it was unpopular.
1) I am, to this point of view. I still think that it goes against the principles the US was founded on to vote on basic civil rights, but if enough people are determined enough for long enough, there’s no valid way — that is, no way that doesn’t itself do more harm to the principles of liberal representative democracy — to stop them; and in this case, that’s what’s happened. The right way to fight it, now, is to vote it down. And even if it passes this ConCon, it’ll have to make it through another one, and pass the ballot in 2008, and I don’t believe there’s much chance of that happening.
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2) Voters are, on this and many other issues.
I agree that the measure would fail here if it were voted on today. And that would send a message. But I do not want to watch my state invaded by the Phelps clan and all the other hate groups during a campaign. Healey’s ads would look like puff pieces next to the desperation of the worst bigots in the country focusing all their viciousness on Massachusetts.
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And I don’t like the message that minority rights have to be approved by the majority. But on that subject, if the measure is killed by a majority of our elected legislature voting to adjourn, that’s more than enough of a democratic process for protecting a constitutional right.
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…you are DREAMING if you think that makes it go away.
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LET THE PEOPLE VOTE. TRUST them that much! THAT will make it disappear – otherwise it will come back over and over and overandoverand…
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Do you REALLY lack faith in your belief so much?
that, if it went to a vote, the last Suffolk poll would be borne out — that is, a substantial majority would reject the amendment.
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“Let the people vote” is a shibboleth — as you well know. The 50-vote hurdle is there for a reason: to prevent measures that, as the Herald said, can’t even garner that modest level of support in the people’s legislature from cluttering up the ballot. If they can get their 50 votes, fine — on to the next session. If not, buh-bye, and good riddance.
…if it went to a vote, the last Suffolk poll would be borne out…
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Maybe, but then you’re not betting with your own chips, are you? The vote margins on these things have consistently ended up about 10% more anti-gay than polls show.
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Some of us have something at stake here beyond an opportunity to feel good about our commitment to good government. (Would it even really be good government–after the crooked signature gatherering and the inevitable onslaught of out-of-state fundie demagoguery on the airwaves if this goes to the ballot?)
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They should vote to adjourn and feel good about doing it.
I’m not entirely sure what you’re saying here, but I gather your point is that I’m not gay. Well, it’s true, I’m not, though I have family members and many close friends who are.
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Not that any of that really matters, IMHO. You cannot seriously be suggesting that only gay people should be allowed to vote on issues that affect gay people, since obviously there’s no logical stopping point on that line of reasoning, nor is it consistent with any viable theory of democracy with which I am familiar. So I take it what you’re suggesting is that this matter shouldn’t be open to a popular vote at all. But that doesn’t really work either. Assume that Goodridge had come out the other way. You’d want the right to put gay marriage on the ballot, wouldn’t you? If you followed the rules, and gathered your signatures, wouldn’t you expect the Attorney General and the legislature to play it straight, instead of monkeying with parliamentary procedures to kill the measure? More generally, assume that, in your view, the SJC had delivered a decision that had really screwed up the Constitution (hey, it could happen!). Wouldn’t you want the legislature to respect the constitutional process by which the people and their elected representatives retain the authority to amend the Constitution? I know I would.
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As for fraud, I haven’t seen any credible report to suggest that the signature out-faking (of which there was undoubtedly some) came anywhere close to the tens of thousands of fraudulent signatures needed to bring this petition below the required threshold, since they collected about twice the 60,000 or so that are required. If anyone has the evidence, by all means, let’s hear it.
So I take it what you’re suggesting is that this matter shouldn’t be open to a popular vote at all.
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Not through a special referendum in which people who’ve never given the issue two minutes of serious thought–but hyperventilate when they think of gay people–get to deny to others what they take for granted.
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I’m suggesting you pick a different issue on which to make your stand for clean procedure. I’m all for it–in the abstract–but not when I’m expected to gamble on the legal security of my family as an illustration of your point. My priority is insuring that I am able to take care of the person I love via all the same legal protections that are available to you and everyone else.
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It’s a difference of opinion, and I’m suggesting that a major reason for the difference is, yes, that this doesn’t affect you personally. That’s not an accusation; it’s just a simple fact.
No. It’s an accusation, and I reject it.
But what it is exactly you think I’m accusing you of?
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You’ve said what your priorities are; I’ve said that mine are different. You put the showcasing of model process above making sure that the rights of same-sex couples are secure; I don’t.
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Your tone makes me think you’re rather proud of your commitment to principle. That’s fine, you should be. But your prioritization might be different if you had experienced at some point in your life what it feels like to be denied the legal means to care properly for your life partner. Why is that such an offensive thing for me to say? Don’t you think it could be true? Having that experience has certainly changed my views on a lot of things.
(This is Lynpb’s spouse, who has been too busy coordinating a narrow victory for Deval Patrick in our Republican town to have kept track of her own BlueMass account & password.)
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I can’t imagine a more disillusioning outcome, after spending countless hours and more dollars than we could really afford supporting Democratic candidates this year, than for Massachusetts to thank us by advancing a constitutional amendment that will make us second-class citizens. Didn’t we just elect a governor by a landside who made no apologies for supporting the Goodridge decision? Didn’t we just elect pro-equality state legislators to replace the notoriously anti-gay Marie Parente, Phil Travis and Emile Goguen?
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Deval Patrick’s message of having a stake in your neighbors’ futures isn’t just words – it’s a call to act. This isn’t about theory – it’s about whether we are entitled to the same rights you enjoy under our constitution. It’s legal protection for our families, health insurance and inheritance rights, whether we are allowed the full rights and responsibilities as other citizens.
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Religious extremists would like to deny us those rights. And you say, fine, the process allows that, but I sure hope they don’t succeed? How is that different than saying to the black defendant in the pre-Civil Rights Act South: “Well, son, I sure hope that all-white jury doesn’t convict you?”
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Anyone who is a Democrat, and not just someone who gets a kick out of reading blogs about politics, should be picking up the phone in the morning, calling his or her legislators and insisting that this offensive amendment be stopped. Now. By whatever means. The civil rights of a minority does not belong on the ballot for majority vote.
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It was all procedurally legal when all-white juries convicted black defendants in the South on trumped up charges, too. And it was still morally wrong.
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Instead of bloviating on how wonderful it would be for us all to spend the next two years on a ballot fight, realize that gays and lesbians are perhaps 5% of the population. We haven’t won one of these fights yet, and you think it would just be great to try one here in Massachusetts? What possible meaning can constitutional rights have, if they can be invalidated by the whim of 51% of the population?
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The amendment is bad in principle – singling out a particular minority for separate, disciminatory treatment in the state constitution. Worse, the rationale is religious – and one group’s religious views shouldn’t be imposed through the law on everyone. Some supporters of the amendment probably do not understand that the current law affects civil marriage only and that churches have not lost the ability they have always had to decide who can marry within that faith.
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The amendment is also bad politics – an anti-gay ballot initiative would tie up people and resources that could otherwise be tapped for Democratic candidates and issues of broader concern. It would draw right-wing money into the state. In the Deval Patrick campaign, there were a number of towns like ours, where the coordinators were like us – gays and lesbians who marshalled their financial and personal resources to help elect a Democratic governor. Many of us came out early for Deval because we were so disappointed in Tom Reilly’s lack of support for us. If the amendment were to make it to the ballot, many of us would be forced to put our energy and dollars to fighting the initiative, rather than supporting Democratic candidates and goals.
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On the pragmatic side, there hasn’t been a downside in Massachusetts for pro-gay legislators – we’ve reelected all of them, while anti-gay legislators have been defeated. The mantra we’ve heard from the other side is “let the people vote” – well, the people do vote and have voted for their state senators, representatives, and their new governor, and they have not chosen to elect anti-gay candidates.
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There’s a reason the amendment process runs through the legislature – it gives them the ability to stop a discriminatory, shameful amendment from advancing. They should use that power – including procedural maneuvers – to do the right thing and protect gay and lesbian families.
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Comparing how society deals with reproductive rights and how society deals with civil rights is like comparing apples and oranges.
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I think it’s naive to think that the issue of abortion has been settled in South Dakota. People who believe that abortion is wrong — that it is murder — are not giving up. They are not going to change their minds. And no amount of time letting women choose to terminate their pregnancies is going to get them used to the idea. That issue will be back.
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By contrast, there is no such opposition to gay rights. The most vocal opponents are people like Fred Phelps and Brian Camenker, who aren’t reasonable and are not taken seriously by the vast majority of us. The rest of the opposition is rooted in, for the most part, ignorance born of a lack of familiarity with real, live gay people.
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The issue of marriage is going to be settled, as we’ve seen in Massachusetts, the same way the issue of interracial marriage was settled: by courts striking down anti-miscegenation laws and by the public, slowly, getting used to the idea of people of different races being married. They got used to that idea by seeing actual interracial couples married. And by also seeing that such marriages had no impact on them whatsoever.
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The right to interracial marraige was not settled anywhere by popular vote.
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If lawmakers kill the anti-gay marriage amendment by adjournment or other procedural tactics, it falls well within the purview of the “democratic process.”
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I truly do not understand this goo-goo push for a popular vote.