I was talking to a friend about the anti-equality amendment to our Constitution and he asked, “Why can’t you propose an amendment to the Constitution preserving equal rights in all things – including marriage – for all citizens of Massachusetts?”
He made a lot of sense! The anti-equality measure got 170,000 signatures in our Commonwealth where a majority of citizens support equal rights. Surely we could get more. The anti-equality measure only has 63 Legislators supporting it. Surely most or all of the rest would support a measure preserving gay marriage rights. We could simultaneously ‘let the people vote’ and undo any damage if the anti-equality measure passes.
So, I’m throwing his idea out there because he’ll never post it in a million years. What are your thoughts? How should such an amendment be worded? What kind of organization would be needed to get the signatures and such for it? And finally, do you know anyone who might want to run with it?
in both the pro- and anti-marriage amendment processes is a popular vote by the people, requiring a simple majority.
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If the majority of people vote anti-marriage, they ain’t pro-marriage, and vice versa. So, why vote twice?
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The only reason I can think of is that over time people are becoming more tolerant and accepting of the gay community — and so even if they voted against gay marriage in 2008 they might vote for it in 2010 or 2012.
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In the mean time, it sends a signal that the pro-gay marriage community isn’t confident that the current constitutional amendment will fail — effectively showing a sign of weakness. Sure, I understand that it’s a matter of hedging bets, but not everyone will see it that way.
I don’t see how it would be a sign of weakness. It seems more like a way of “letting the people vote” without risking anything. It might be easier to persuade some members of the general court to support this amendment instead of the current one than it would be to persuade them to just drop the whole thing. It would also force the general court members to choose one way or another with respect to marriage equality. Right now, they can claim that they support advancing the amendment because they think the people should be allowed to vote on the matter. If you provide an alternative that still lets people vote, that cover is taken away. Which makes the claim that every representative voting for the anti-marriage amendment is a bigot that much stronger.
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The main problem that I can see with this idea is that it isn’t clear that it actually changes the constitution. According to the SJC, this idea is already in the Massachusetts constitution. Can you propose an amendment that doesn’t actually change anything?
… and the SJC used that in their decision (requiring a female ‘bride’ and male ‘groom’ in marriage is sex discrimination). So, what could be added to the Constitution is protection against discrimination based on sexual-orientation.
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That would be a change, an addition.
…which have passed anti-equality amendments. What can be done can be undone.
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And I don’t like the ‘hedging bets’ image. How about ‘insuring liberty and justice for all’?
imply that the courts are inferior to the electorate for addressing equal rights issues?
In real life, I mean. I can see why this would be an issue in a political science or legal philosophy class.
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But I just don’t see how it would be an issue in real life. It’s like if I stop at a green light because someone is running their red light and you ask, “But doesn’t that make you inferior to someone who is violating the law?”
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Well, yeah, but I prevented a collision from happening. And that’s more important than satisfying some esoteric philosophy of ‘superiority’ and ‘inferiority’.
This has real-life implications. If we adopt your approach, then in the next state, or in the next equal rights issue, people will point to Massachusetts and say: “Look, they needed to pass a constitutional amendment to make gay marriage stick. Goodridge wasn’t good enough for them, and it’s not good enough for us.” This is the kind of stuff that makes courts duck the tough questions.
…there are already so many states where that would be necessary because there are straight marriage amendments already on the books, thus requiring another amendment to bring marriage equality to fruition, that you point seems largely moot. The only other hope would be a decision from the Supreme Court overturning existing state straight marriage amendments and that is not likely any time soon.
Of course a state that has an anti-gay marriage amendment would require rescinding it first. But the very states you point to, the ones that have such discriminatory amendments, only bolster my point – the fact that the people in those states needed to pass an anti-gay marriage amendment in the first place means that they were worried about their courts allowing same sex marriage under their constitutions at the time. And that’s my point entirely – I’m want to protect the role of courts, which act as a countermajoritarian entity that prevents tyranny by the voting electorate. Requiring affirmative, electoral steps to protect what is rightfully within the traditional domain of the courts only serves to weaken the judiciary and thus disenfranchise minorities.
…this weakens the judiciary. The constitutional limits of the courts are what they are and are what they have always been. Marriage is a sacred cow in our society that people are willing to go to greath lengths to “protect.” I don’t see this interfering with other minority rigths. I think marriage equality is a very special case that will be fought out mostly by the electorate, at least in the short term.
…inferior to the electorate when it comes to writing the constitution. The courts are bound to interpret the constitution as it exists and the electorate can amend it. That is not to say that the electorate is intellectually superior than the SJC in being able to interpret civil rights issues, but as a practical matter it is difficult but possible for the electorate to have the final word.
OK- let’s say that the anti-gay amendment passes another session of the legislature, gets on the ballot, and passes in the popular vote. (It could be the thinnest of margins but if the two Bush elections have taught us anything, it’s the pain of a simple majority.) If the Constitution is then amended, does our equal rights amendment need to have language that specifically cancels out the anti-gay amendment?
I think the only thing going for this idea, to put equality on the ballot is to get a compromise between the “let them vote” crowd and those that support equality. This way anti marriage force CAN vote down gay marriage while also ensuring that really its a symbolic gesture that doesnt affect anyone. Of course most voters would be smart enough to see through this.
But its an interesting take and I applaud you for posting it.
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Also someone said wouldnt this make courts inferior, um hello the fact that we might be voting to reverse a courts decision as it is already signals this fact, again the process liberals, the legislature, and the SJC are all wrong in allowing the people to vote on already determined constitutional precedence, it sets a dangerous precedence for future laws.
We don’t recognize the divine right of kings to rule over us. Thomas Jefferson told us that Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.
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If the people didn’t ratify the Constitution in 1780 there would not be a SJC in the first place. I wouldn’t use the word inferior, but the courts are certainly below the people of the flow chart of Constitutional power.
As I like to say, the mob liked Hitler, too.
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In theory, you are correct. In practice, however, the electorate is not supposed to be supreme when it comes to abridging the rights of others. One of the founding intents was to avoid the tyranny of the majority. That’s why there are so many checks and balances and obstacles.
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In contrast, an overrule, which is not unconstitutional, would leave those couples (and whoever got married after Goodridge) alone and would not affect their marriages, but would bar anyone else from getting married. This would create three or four classes of citizens, depending on how you look at it: (1) heterosexuals who could get married and remarried at will, (2) those same sex couples who got married between 2003-08, (3) those same sex couples who got divorced and cannot remarry, and (4) those same sex members who “missed the boat” and cannot get married anew.
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2. your comment (“Also someone said wouldnt this make courts inferior, um hello the fact that we might be voting to reverse a courts decision as it is already signals this fact”) does not address what I said before. We are already in a situation where the legislature is one step closer to allowing the ballot to go the people, to overrule the Goodridge doctrine. But it doesn’t address my comment: putting an equality amendment before the people implies that the court should not be in the business of opening marriage for all – that this is a decision for which the people should have input, and not an equal rights issue that is within the court’s competence.
…would probably apply the “last in time” rule, which stands for the proposition that the later statute would trump the older one. But as far as constitutional amendments go, we would probably need to rescind the older one first, as we did with the 19th amendment (rescinding prohibition). The “last in time” rule is a tool used to effectuate the intent of a legislature that enacts many laws, many of them without consideration for old and disused laws. Constitutional amendments, on the other hand, are more infrequent and it’s quite unlikely that a society would pass a constitutional amendment without considering the constitution as a whole.
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So the short answer is yes.
to being amended by the anti-marriage amendment.
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But a slightly different amendment wouldn’t be and would help us frame this as a human-rights issue.
….to get a competing amendment on the ballot at the same time as the straight marriage amendment unless the legislature puts off the vote until after the 2008 elections like they did last year. In any event, I don’t think it would be productive to try and launch a competing amendment in that manner; it would be too confusing for a lot of voters and make the fight even more contentious than it needs to be. I think the best thing would be to campaign as strongly as possible to keep it off the ballot or to win if it goes that far. If it makes it into the constitution an additional amendment could be proposed and put to the voters which would take, I believe, minimally four years. If the straight marriage amendment passed by a very narrow margin it might make sense to launch the new amendment immediately. To avoid any legal confusion it would be best to expressly repeal the straight marriage amendment. There would probably be ample support in the legislature to get a repeal amendment to the voters without needing to resort to the initiative amendment procedure of collecting signatures.
depending on when each was approved by the legislature.
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Of course it would be better if the Joint Session rejected the anti-marraige amendment.
But there are many things critically wrong with this idea. This could change if the anti-equality amendment were actually to pass, but lets stay focused on stopping that right now. Nothing wrong with thinking ahead — but really, we can deal with this, if necessary, later!
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The road to marraige equality will be different in different states — some will get it through courts, others through legislatures, someday some might get it by ballot initiative. But I think Bostonbound is exactly right that this kind of move would undermine a basic principle of OUR message: people’s rights should not be subject to a popular vote.
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It won’t satisfy anyone from the “let the people vote” camp. They’ve got their amendment, and they’re moving that forward.
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And there is a huge opportunity cost. The resources — people and money — necessary to pull this off would be far better used to do any number of things that would help us win now.
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You want to collect signatures? Collect 2,000+ signature IN each of the rep districts of the anti-equality reps, signing a note that says “if you vote to put discrimination in the constitution, I will not vote for you ever again.” Keep a list of the signers — collect their email addresses. Maybe you will meet the person in the district who’s always wanted to run against him/her.
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If we lose this battle now, it is going to make it 100 times more difficult for the next state to move toward marraige equality. Let THAT be our goal — win this now.
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And trying to raising millions of dollars for a statewide campaign that will be ugly (as has been pointed out) and harmful to lgbt folks but has NO REAL BENEFIT would be pretty tough. And without the cash, we could lose!
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If we have to do it because we lose equal marriage rights, it will take a lot of planning to do it right. We can deal with that then. For now, lets win.
There’s the 14th amendment:
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That’s why the idiots are focusing on definitions. They know they can’t make a rights argument because then everyone’s rights would be in question.
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Just as stupid to legislate a word–definitions change all the time. And Merriam-Webster’s Tenth (or maybe Eleventh) already has a non-gender-specific defintion for marriage. It’s not the 1st definition, but it’s there.
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Sometimes I think my head is going to explode. I’d like someone to address the idiot agenda: prejudice, plain and simple.