We would be stuck with a Constitution that denied basic human rights to many people. We would be legally powerless to change that fact. We would be told our only recourse was to vote dozens of legislators out of office — or else to keep electing governors who will appoint enough new SJC justices so that the “bad” Goodridge could eventually be reversed by judicial fiat.
This could easily have happened. Do we really want the Massachusetts constitution, however future courts may interpret it, to only be amendable when a legislative majority (1) calls the question; and (2) votes to put the question before the voters? If so we should change our constitution (good luck!) to require a majority vote of the constitutional convention to get a petition to the ballot rather than the current one quarter.
I am sorely troubled by putting basic rights to a vote. But I have changed my mind on this one. I don’t think making it harder or impossible for “we the people” to change our basic law is a good idea. If Goodridge had come out the other way, I’m betting that a lot of my friends who now want the legislature to protect us from the people’s will would agree with me.
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Why would this be “our only recourse”? You can contact your state Reps., organize campaigns, and try to win the hearts and minds of your fellow citizens in civil society. (Also, why would pro-gay marriage people try to amend the Constitution when a simple statute would be enough?). If ultimately all these efforts consistently fail at the ballot box, then it’s probably time to realize that the majority of people don’t agree with or care about your position. That’s representative democracy.
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This is where your analogy fails, since nothing in the MA Constitution demands a ban on gay marriage.
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I disagree with this. Changing “our basic law” should be very difficult indeed. In MA, it’s far too easy.
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You really are underestimating the “ballot box” process, which is the correct process. As a practical matter, if your scenario occured and the legislators failed to vote on it, there likely WOULD be ballot box reprecussions for those who voted to recess. After all, not a single pro-gay marriage legislator has lost and several anti-gay marriage legislators have. That’s the big difference with your alternate reality and the beliefs of MA residents on this issue.
What if?
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Seriously, this is a poor argument.
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Here is the fact: If this vote happens, there is a near certainty that after November of 2008, gay people in Massachusetts will lose their right to marry.
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Period. End of story.
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That isn’t a “what if?” but a sure bet.
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Never have the citizens of any state voted in support of same-sex marriage. We have lost every vote in 30 states on this issue. We “won” barely in Arizona, but that win was due to the draconian nature of a amendment which would have banned civil unions as well (the Mass. amendment doesn’t do that).
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Liberal Oregon and Wisconsin voted against same-sex marriage. Massachusetts will be no different. Right wing money will flow in. The Catholic hierarchy will threaten to excommunicate anyone who doesn’t follow the party line. People will tell pollsters they support marriage but then in the ballot booth give in to their bigotry. Romney will ride the fact that he got this on the ballot right to the GOP nomination for president, and you can bet that the anti-marriage folks will spare nothing to win here in 2008 — imagine their now-attainable goal of actually reversing gay marriage and wiping it out from the only state that allows it.
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Thereforce, the only viable defense of gay people’s civil rights is the distasteful and dirty tactic of killing this amendment via parliamentary procedure.
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There is no other way. It is life and death. It is war. And the only thing worse in war then winning using unfair tactics is losing.
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That is what you do not understand.
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I appreciate your sentiments, but I would take you up on this bet any day of the week. The big difference is that in MA gay marriage is already around and has been now for a significant amount of time. Thus, an amendment would be ending a right that already exists (and has caused none of the massive problems claimed by detractors) rather than addressing a hypothetical future scenario.
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That said, the political campaign for the amendment would likely get ugly and is probably the best reason for legislators to let the sesison expire without a vote.
You’re wrong on that. If this goes on the ballot, we’ll defeat it. It would take a lot of hard work by thousands of people, a lot of money, put the state through nasty ad campaigns and nasty events and incidents, and be a generally awful process, but at the end, we would win. I have little doubt of that. We’re tried and tested our political organization. We know we have more supporters in this state than the people who want to ban gay marriage. We know we have a better organization. We’ve successfully elected legislators all over the state, successfully defeated several incumbents, and got a governor on our side. Polls are in our favor and we’re better at turning out the vote. They will try, but we’ll try harder, and we’ll win.
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That doesn’t mean we want to go through it. It will suck for the state.
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I don’t follow. In your hypothetical the Legislature would refuse to act on a hypothetical petition which would result in no change to the Constitution, i.e. it would remain silent on marriage. So, by silence the Constitution would deny a human right? That doesn’t make sense at all conceptually.
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Also, you are collapsing human rights and civil/legal rights which are often but not necessarily related.
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There is a process for the people to change the law and the constitution. I cannot understand your objection as 1. there is a process to amend the constitution and change the composition of the Legislature and 2. there are good reasons for making it hard to change.
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I guess I’m curious why you and others on BMG are so attached to this particular notion of process?
Say the SJC had ruled that under the Mass Constitution marriage was only between a man and a woman. Then supporters of equal marriage would have no statutory way to legislate equality — our only recourse would have been constitutional amendment.
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There is a legitimate debate about what the process ought to be for constitutional amendment. Our current constitution, I believe, requires three things:
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1. collect enough signatures;
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2. have two straight constitutional conventions vote by more than one quarter to put the question on the ballot;
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3. get a majority of voters to approve the amendment.
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Requirement #2 reflects an interesting choice: not a majority of legislators, not a supermajority, just one quarter. Maybe that’s too low a bar to get over, maybe it should be changed. But that is what our basic law unambiguously says.
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I, and maybe other BMGers, think that legislators flouting the only way citizens have to change their constitution, for good or ill, is not a good idea. Today the cause that is advanced, at least temporarily, by this flouting is the progressive one of equal marriage. Tomorrow it may be some cause that few of us here would support.
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Perhaps, as another poster passionately states, this is war and we simply need to win by any means necessary. But it is more than ironic, it is dangerous to freedom, to seek to uphold a legal victory and legal rights by a device that amounts to an end run around the rule of law.
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You may be right that the process needs change, &c. However, as someone whose marriage would be directly impacted, it does not seem that the motive is pure interest in political process. Why now? Why object now? Why on the backs of gays and lesbians for whom this is not a mere academic discussion. I don’t believe that it a pure interest in process. It feels like a play to the center. Would you object if the Legislature did what it did and the amendment was an anti-miscegenation initiative? The legislators didn’t flout anything either. They acted openly and publicly.
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This is hyperbolic. There has been no end run around the rule of law. The legislature acted, the lawsuit was filed, the court ruled. The law seems to be functioning perfectly. This is not the only time that there have been injuries in the law without a remedy or rights that are not enforceable. It is common that there is no judicial remedy available. That’s the law in the United States. There are numerous justiciability doctrines such as doctrines around political questions. I don’t think the SJC should have heard the case at all.
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What is dangerous is to risk provoking an unnecessary government crisis by filing a lawsuit like this. One that you know you cannot win and that unnecessarily raises separation of powers issues.
The legislature has done this (block amendments) dozens of times for many years and no one has really raised too much of a fuss.
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But somehow, now, right now, after all this time, all these people are suddenly really upset? All the sudden you see “process liberals” with stirring editorials here and in the papers.
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Why now?
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Could it be because this amendment involves…….gays?
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I would not at all be surprised if on Tuesday a vote is indeed forced on the gay marriage issues…and meanwhile, the health amendment is conveniently left to die….will anyone even care, as long as the gays get bashed good and proper?
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And in the future, more amendments will be killed this way. But, at least the gays will have gotten bashed. The system works.
What if this petition is not the will of the people?
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What if the signatures collected are a result of outside the state money coming in to influence a bigger picture, and to control us?
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What if The Catholic heirarchy got involved and told the priests to collect the signatures in their parishes, or they were fired?
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What if thousands of people were duped into signing the petition when they were told it was the wine petition?
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What if there was a criminal investigation into said fraud?
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What if the were no due process providing first a need to take away gay marriage before we went straight to the jury (the people’s vote)?
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Oh wait, I am supposed to be using hypotheicals.
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The SJC already declared that the constitution did not deny marriage equality in the first place; that’s what came out in the Goodridge decision. I will take whatever help in defending my rights that comes my way, in whatever form it comes, and be thankful for it. I will be as apologetic for “hijacking” justice as my opposition is for their oppression. The legislators are rightful in their position that this vessel of hatred known as the marriage amendment should be ignored and allowed to die.
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Even if the signatures on the petition were not collected by con-artist convicts hired by Arno political consultants, and paid per the signature, this would still be an outrageous attempt to violate the liberties of neighbors because you disagree with their life choices. Sheesh!
Pure and simple which is what we have been trying to do, and succeeding.
… this is a tough one.
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I would not, for example, want to hold a vote on the First Amendment. Most people seem to accept at least some restrictions on speech.
Even though I’ve been out of the state for a while, I know full well that there was no great groundswell of support for same-sex marriage prior to the decision–that is, after all, the reason why supporters chose to pursue the litigation route as their most promising option. Except for the recent civil union legislation in Connecticut, no state has extended marriage rights (whatever they choose to call them) to same-sex couples except when ordered by the courts. This argument belongs in the “if pigs had wings” category.
Article 48 expressly forbids a vote on things like voting rights and free speech – marriage is just not included in the prohibitions. Goodridge specifically states that it is APPROPRIATE for the Legislature to act, and gives them a six month waiting period to do so. No, we are going to use a rosy gouache, and wipe away any traces that this wasn’t always some inalienable right. It may have been in some opinions, but it never has been legally under state or Federal law.
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They are creating a dangerous precedent, as nobody holds the majority forever. I want protection from liberals, and someday liberals will want protection from conservatives on specific issues. And I especially wnat protection from a rogue legislature which will not follow its own rules and the oaths.
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Wait until the Lege decides to do something progressives disagree with, and ignore procedure and process to cut corners and do it. The wailing and keeing will pierce the heavens, and they will not understand they did it to themselves.
Didn’t that already happen when the legislature used procedural tactics to kill the abortion amendment? Ironically, it seems a lot of the same people who were behind that move are now adamently opposed to using those same tactics in this instance.
..and that whole crowd.
Yes – the legislature used procedural tactics to kill an amendement which would have put an explicit right to choice in the state constitution.
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And yes – ironically a lot of the people behind that move are now adamently opposde to using those same tactics.
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But also ironically (in fact I believe even more ironically) a lot of the same people (and not just the same organizations but the very same people) who decried those procedural tactics, organized against them (getting the governor to call the con con back into session), planned legal moves against those tactics – are now saying those tactics are just fine.
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so irony abounds.
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Jamie
…on this are not stupid, they know what is at stake and they know that one principal of the constitution is being sacrificed to preserve another and that there may be consequences. They get it just fine, they just disagree with you and think it is well worth the risk. And btw the precendent for procedural endruns was set a long long long time ago and yet our govt. still functions. I am neither supporting nor opposing what the legislature is doing because I’m frankly too personally tied to the outcome and conflicted about the process to come to a conclusion. I will accept whatever happens. That being said, I think that for you to continually state that people who disagree with you don’t get it is pointless. They get it. They just don’t agree with you. Got it?
even here at BMG. Plenty of people have argued that since they disagree with Article 48, and in particular the 25% threshold for citizens’ petitions, it’s okay for the legislature to thwart it; that the absence of a legal mechanism to enforce Article 48 “means” it’s not really unconstitutional; or that nobody really cares anyway so therefore in a democracy that means it doesn’t matter.
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Plenty have gone cavalierly on to argue that the Health Care Amendment is, in their view, a bad idea and therefore also does not deserve a vote by the people, Article 48 notwithstanding–quickly and effortlessly leaving behind the high principle that it is human rights and nothing less that trumps constitutional rights and obligations.
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I have yet to detect a shred of principled regret by legislators forced to abandon their constitutional duties by the enormity of a proposal to put fundamental rights on the ballot. No one has taken personal responsibility for any acts of civil disobedience, so-called.
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I do not assume that you hold any of these views, but these and other frankly opportunistic and short-sighted arguments are not unusual here. I wonder how many of them were made in 1982 when opponents of progress and human rights killed the reproductive-rights amendment in 1992.
…and you can demonize them for it all you like, but to suggest that people simply don’t understand the complexity of the situation is unsupportable.
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And why should the legislators show remorse for doing what they believe is the right thing?
Indeed, I took your post seriously and at face value, even though I do not know you.
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I am sorry that you are unwilling to extend the same courtesy to me.
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Show me where people have argued this.
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I have argued that the Health Care Amendment may be a bad idea, but I’d be pretty offended to discover that paragraph is a reference to what I said, so I hope you’re talking about something I just didn’t see.
You can scream Article 48 from the rooftops if you like, but there is a greater good and purer justice these legislators are serving. The SJC just opened the door for them when they said there are no ramifications for adjourning, and like it or not there IS precedence to do so. I’ll send you some tissues on January 3.
Publius,
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I am a “Differently-Winged” blogger, so a guest here, but I’ll add my opinion that your point is not at all weak.
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Though your argument is hypothetical, it recognizes that the most fundamental component of equality is the right of all to due process of law. It is unbelievably (and sadly) ironic to those like me on the political right to see some on the left argue that the legislature must now disobey both the SJC and the constitution in order to?follow the SJC and the constitution? Some of your colleagues on the left show amazing immunity to the concept of the rule of law (the Goodrich ruling being a notable exception)!
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I recognize and respect our differences on this question, but I’m glad to find some common ground with Blues.
Normally I’m very much on the side of good, pure, open process, and normally, I think the practice of avoiding a vote to kill a ballot petition for an amendment is a bad thing. Here, I’m ambivalent. Why?
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1. Signature fraud. We know know it happened, in massive numbers. Yet all the signatures were certified! With no investigation into the fraud, at all!
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You can say, well, no matter, we knew that there were enough legitimate signers anyway, so why go through the expense and hassle and delay of an investigation? And I say, I know that this amendment will fail if it goes on the ballot. But we’re arguing process, aren’t we? We’re not saying that it’s okay to short-circuit good, proper process just because we know the outcome and we can say it won’t make a difference. Or are we? Because that’s what happened with signature fraud.
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2. Overturning a judicial decision. Our constitution says you can’t use the ballot process to initiate an amendment meant to overturn a judicial decision. I can’t fathom how and why this could possible be in our Constitution if it weren’t meant to prevent exactly this kind of amendment. And yet our state, including the SJC, let it through anyway, using tangled overly narrow interpretations of the Constitutional provision, IMO for political purpose. If it weren’t for the politics, this amendment would’ve been ruled illegal (preferably by Reilly, before even going to court).
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Are we saying that it’s okay to circumvent the clear intent and spirit of the Constitution based on political calculations? Just as long as we can construct a narrow enough interpretation of the Constitution that allows it to happen?
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I support good process. When it comes to this amendment, good process was already thrown out the window, and then stomped on in the gutter below, before the legislature got to it.