Mike at Marry in Massachusetts has been giving it to us “process liberals” (ugh) with both barrels lately. In fact, he’s so angry, he’s moderated at least one of my comments into the circular file. Nice. [Update: Mike claims Blogger ate it. Based on my experience with Blogger sites, I suppose that’s possible.] Now he wonders out loud:
We are awaiting fellow travelers, like Blue Mass Group or hardy har, VoteOnMarriage, to scream as loudly over the suffocation of the health-care amendment as they have over the anti-marriage equality amendment. They might eventually raise a weak, “Whoa, dude, this is important too,” complaint. Don’t count on it.
Yeah, Mike, where’s the outrage about that health care whatchamacallit?
Oh yeah.
That’s without even trying that damn hard, Mike.
Look, we have had and will continue to have a real discussion about the politics and tactics to win same-sex marriage for real and for good. We can take the criticism — in fact, we encourage it. (And by the way, we don’t delete the comments of those who disagree with us — QED.) It’s a difficult, emotional, but productive discussion — “within the progressive family”, as it were. We’re listening — not necessarily changing our minds about what we should have done, but definitely listening.
But Mike’s fantasy that we took the position we did because we actually don’t give a damn about our gay and lesbian neighbors is pure garbage, completely invented. He knows it. It should be plain to any half-awake critical reader. And he should drop it like a bad habit — which it is.
I do not for one second believe that the editors are anything less than deeply committed to GLBT equality, and cannot condone any attempts to cast blame on them or other exponents of the “process liberal” position as it has become known. It was not the process liberals who advanced the anti-gay amendment; it was largely Trav and he could care less about the honorable principles which the editors and others feel so strongly about.
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I do fault the SJC for making superfluous legal commentary in the context of the Mittster’s frivolous lawsuit. They invented the fiction of the supposed legislative duty to give initiative petitions an up or down vote. How can a Court opine in any meaningful way about a duty that cannot be judicially enforced? The fact is, they were giving an advisory opinion unrelated to the legal rights of the parties before them, in the absence of a request competent to trigger their advisory powers. Because they had no role to play in how the legislature acts or doesn’t act in ConCon, they were treating a political question over which they had no authority. It seems a clear violation of Article 30.
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Because the Court presumed to pass on a political question without authority, they impermissably affected the outcome of the constitutional process themselves. They prattled on about an empty constitutional duty while refusing to enter declaratory judgment. So Trav could use their dicta to bewitch process liberal supporters of gay marriage into supporting a vote, while at the same time safely relying on their lack of jurisdiction in this area to scuttle the health care amendment. Their dicta were political, and advsersely influenced a political process by giving the Senate President cover to carry out his unprincipled wishes.
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Please understand that GLBT folks are very sensitive to having laws applied selectively against them. Double standards have been the norm since the days in which the police imposed an extralegal penalization of homosexual fraternization devoid of due process. I suppose our faith in process tends to the skeptical side.
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This is a lose-lose for GLBT folks and process liberals alike. The process liberal position has been undermined with the exposure of its hollow legal foundation, and gay marriage may yet be demogogued to death.
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I think progressive supporters of gay marriage are heroes, but the SJC overstepped its role and gays got burned.
They seem to want to stake out every side in this thing–they set the whole thing in motion with the Goodridge decision, and ever since have tripped all over themselves to encourage the anti-marriage crowd. It seems like they had a notion they were going to be in the vanguard of promoting same-sex marriage, then when nobody (in other states) followed them, they lost all interest in standing behind their decision and seem unduly encouraging to those seeking to overturn Goodridge.
Nope, can’t have anything to do with actual legal reasons, their decisions.
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Goodrich was a decision based on the legal merits, not the activism (as so many righties would accuse of them). But that sword cuts both ways…if the other side has a legal point, the SJC will rule in their favor. It’s pretty much that simple.
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Unfortunate, but simple.
on the “duty” to vote. That’s the point.
Why the heck do we want or need a food fight over this? Really, Charley enough of us trust your and David’s bona fides on GLBT rights. The range of negative opinion here probably ranges from thinking you guys were tactically wrong to thinking that you guys were tactically wrong because you undervalued the importance of the equal marriage issue. That’s not that negative and you can survive it. There are also plenty of folks who agree with you.
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The bigger picture is that progressive unity is an important thing. Surely, moderating comments to the circular file is unfair and personal with an extra dollop of irk, but in the big world it’s no big thing. (I note too Mike at Marry claims not to have done this and blames Blogger.) Why not leave Mike to his rage?
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Can we stop picking this scab for a few days?
Charley, this portion of your comment over at MiM doesn’t sit well with me: Did it occur to you that one of the main reasons we took this position was exactly because of the health care amendment?
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It sounds like you’re saying that your promotion of the process argument was never a face-value affair. I read the quote above as an admission that BMG’s political priorities and strategic judgment informed the decision to make a fuss about process right from the beginning–yet until now no one has ever admitted this, and instead has bristled at the very suggestion. In argumentation here, I’ve been honest about my political calculus from the very beginning–and gotten savaged and caricatured as a machiavellian anarchist for it.
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Unless I completely misunderstand you, all the critiques of BMG process liberalism–from both before and after the concon–are right on target. And you’ve just disarmed yourself against them. Do I completely misunderstand you?
The whole point was that good and bad amendments would get lost in a sham ConCon, which is what we had. The HC amendment was a perfect example of what gets lost if you don’t follow the law.
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You are slicing it pretty thin if you imagine that’s a contradiction somehow: We’re not “content-neutral” observers — never have been, never will be, never claim to be.
Who’s to say that Trav and the “process cynics” don’t have the correct interpretation of law? Not the SJC, because whether a vote is taken on the merits of a petition, or instead on some procedural permutation thereof, is a political question, which they should never have tread upon with their unsolicited advice. That means the decisive legal interpretation is that adopted by the particular ConCon at the given session, notwithstanding precedent. As a legal positivist I find it very difficult to embrace a “natural law” argument of the sort the process liberal position depends upon. Law is what the lawgiver says it is, and in this case the lawgiver is the legislature.
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There may well be a moral principle involved, but there is no meaningful legal “duty.” I find it illogical to speak of a “duty” which you or I have only a very diluted right to enforce, by a solitary vote which can be cast only once every 2 years, then subject to the effect of thousands or millions of other votes. Yet I do assail Trav’s hypocrisy in using the process liberals pretextually when he’s every bit the positivist.
…standing by and watching the SJC (without whom I would not be married) take it on the chin. Their “advice” whether you like it or not (and for the record, I don’t) was not unsolicited, they had a controversy in front of them (presented by the governor no less) which they felt obliged to answer.
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Moreover, perhaps “law is what the lawgiver say it is” is a bit of an over simplication. Common-law constitutional practice is anything by uncomplicated. Has this situation been exacerbated by the political forces (like the VoM people) at play? Absolutely. But in my estimation the SJC is to be commended for not considering that rather than demonized because it. This just strengthens the notion that they were not politically motivated with Goodridge.
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The way I see it, we are now one step closer to finally putting the article 48 process question behind us. The SJC has said definitively (albeit more repeatedly than was perhaps necessary considering the LIMITS opinion) that they can do nothing. If the CLT bar appeal goes nowhere (which I think it will) the legislature may finally be free to act to kill the Marriage amendment with impunity.
then legislature may finally be free to act to kill the Marriage amendment with impunity. is certainly possible. But with that gavel a-swingin, do we have a chance? Is there a way to move to adjourn that can happen after he opens the session and before he immediately brings another vote?
There is no way at all.
The only reason this is even a controversy is that the nose count goes the wrong way.
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There has been a little too much ‘higher, greater, spriitual, moral’ justification used for what is a reaction to a political defecit.
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The same SJC which decided Goodridge to begin with has said – it IS appropriate for the Legislature to act (the decision oincluded a 6 month window for them to do so) which is an implicit statement that this IS a subject for voting, by representatives and the electorate. It further stated that the Legislature DOES have a legal duty to take a substantive vote, on both HCA and SSM.
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Again – Issacson cannot have this both ways. If the public is on her side, and moved beyond this issue, then why isn’t she DEMANDING a vote? Yet when a vote is taken, she says we will lose. She exudes conempt for the electorate, who WILL reject this amendment if given a chance.
I don’t get your assertion about Isaacson can’t have it both ways. She could very well be right about both:
– the public thinks the legislature would do better to work on more important issues rather than spending so much time on this gay marriage stuff
AND
– voters would still pass the marriage ban after what would surely be the nastiest, most viciously anti-gay campaign ever seen in Mass. A campaign based on endless 30-second tv ads pitching every anti-gay stereotype imaginable. Ads which the gay community would have an impossible task countering no matter how many sweet portrayals of loving, committed couples they put up.
Every gay marriage ban has passed. (The Arizona amendment also banned heterosexual domestic partnership benefits and the campaign that defeated it was almost entirely about straight folks, especially non-married seniors, NOT gay families.)
Just because many of us believe that voters would pass the amendment doesn’t mean we “exude contempt” for the electorate. We’ve seen what happens when millions come in from out of state and lie about the issue – just like the marriage ban petition signature gatherers were brought in from out of state and lied about what people were signing.
Where I most strongly take issue with the process liberal position is the erroneous assertion that it is supported by law. The law does not require an up or down vote on initiative petitions, as Trav well understood but the editors did not. Because how the legislature votes or not is a political question, it is not regulated by law. The SJC’s dicta declaring a (legally unenforceable) “duty” was empty political commentary and ultra vires. If they were declaring law, why did they shrink from giving their constitutional notions the effect of a declaratory judgment?
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The editors took a principled political position and are justly outraged that Trav was so cynical in selectively agreeing with them. And their support of same-sex marriage is above reproach; I defy anyone who says otherwise. But the editors cannot invoke “law” where no enforceable rights exist.
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David, am I wrong?
…does this void Goodridge as well?
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What ‘law’ was being enforced in the decision?
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Isn’t the people’s right to vote upon a petition – acted upon by the Lege per Article 48 – an enforceable one?
The courts make law in the process of deciding the legal rights of the parties who bring controversies before them. That’s their role. It is not their role to pass on non-justiciable questions of applying the constitution that are entrusted to the judgment of another branch of government. The Goodridge decision stuck to deciding the rights of the parties before it; the principle of stare decisis meant that the rule in that case applied to all parties similarly situated. The plaintiffs in the Mittster’s frivolous suit had no legal right to the relief they wanted, and their complaint was dismissed essentially on grounds of lack of jurisdiction. The superfluous commentary about “duty” lacked the force of law because it did not go to the rights of the parties before the court.
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The Goodridge decision was of legal effect; the dicta in the Mittster’s case weren’t, as Trav so forcefully demonstrated.
a pretty technical “process” argument to me! 😉
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Seriously, you’ve raised quite an interesting point that is, IMHO, too complicated to deal with in blog comments. It’s real law review material. When I have more time, maybe I’ll try to write something up about it. For now, let me ask you this: if Goodridge had been decided — as it could have been — with a one-line ruling along the lines of “The judgment of the Superior Court is reversed,” what result for gay couples who were not plaintiffs in the case?
A case of the constitutional moment of Goodridge deserved a full-text opinion and got one. Without it, the lower courts would have been left to read tea leaves. Decisions should be explained; but non-binding legal commentary is inappropriate when a court lacks jurisdiction over a controversy.
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I don’t think the holding/dicta distinction is all that technical; Trav sure grasped its meaning.It comes down to the exercise of power–who has it, who doesn’t.
and don’t you think that the lawsuit brought by Romney et al. was also of considerable “constitutional moment”? Even if the SJC ultimately concluded that it couldn’t order any relief?
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Also, you haven’t really answered my question. Yes, the SJC should have explained its decision in Goodridge. But it didn’t have to do so — a court’s job, even the SJC, is to decide cases between litigants. Your point now is sort of the opposite — you’re saying that because the SJC couldn’t order relief in the case before it, it should have said nothing.
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As I understand your basic point, it’s that the SJC should treat the meaning of Article 48 as a political question over which the courts have no say. There are a couple of problems with that. First, it goes against decades of the SJC opining as to exactly what Article 48 means — and in some cases (though not all, including LIMITS) ordering relief. Second, as I noted in another thread, the point of Article 48 is to give the people a way to end-run the legislature, so giving the legislature final say over Article 48’s meaning is problematic. Perhaps the correct solution, then, is that the SJC does have jurisdiction to order relief in the particular circumstance of Article 48, and should have given itself jurisdiction to hold legislators who refused to vote on an initiative amendment in contempt. Talk about a looming constitutional crisis.
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As I said earlier, this is an interesting and complicated topic. I’m not convinced it’s as straightforward as you’re suggesting.
things “arcane.”
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When it comes to enforcing a so-called rule against gay people, it’s fine to act as if the rule is widely accepted, fully understood and common knowledge.
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But when the legal realities cut the other way, they are quickly dismissed as “academic” or “too complex” and fit only for a law review discussion, rather than giving them the force of law.
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The consistent use of inconsistency by the process advocates has not gone unnoticed.
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The distinction between dicta and rationis decidendi is not “obscure” or “unclear.” It’s a focus for every appelate argument ever offered in every court in the Anglo-American world. In ever case, every lawyer asks, Is this statement of the court one of the grounds for its decision? If not, the statement is without force.
The SJC should explain its ruling and not overreach its authority to opine on questions not within its jurisdiction. It is appropriate and helpful that they elaborate the reasoning that took them to their decision, but dicta are “by the way” and of no legal effect. (And you’re right that they don’t have to explain themselves, though custom and practice demands that they do so in cases they decide.) If they stray beyond the province of the courts into “political questions” they cause mischief. A cogent explanation of the “political question” doctrine would have been sufficient to dispose of the Mittster’s meritless claim.
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Article 21 of the Declaration of Rights disarms the constitutional crisis; the legislature has the last word on ConCon proceedings, and the courts cannot question their decisions. I think the death of the health care amendment, hypocritical though it was, establishes the controlling consitutional doctrine, through the very fact it has happened and the courts can’t rescue it. How can there be a legal “duty” when the legislature ignored it and had the final say?
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Why did the framers give the legislature any role at all in amending the constitution in the initiative petition context if the voters were to have an end run? That argument proves too much.
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I hope I am not unduly fanning the flames of the “process liberal” vs. “process cynic” debate. I appreciate your support of marriage equality and am very distressed some folks on my side aren’t giving you guys the respect you accord to others. (In this context, you have the operative power, and could could can my comments if you wanted to, but you’re too fair-minded as is very clear.) I think your position is valid and principled, but I draw the line at calling it law. Unfortunately for us all, in this context Trav was the lawgiver and we’re stuck with what he doled out.
And I certainly agree with your last point, at least as a practical matter.
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Re the “end run,” I think the fact that the legislature only has to muster 1/4 of its members to approve of an initiative petition pretty much demonstrates that it is supposed to be an end-run. Can you think of any other instance in which a minority of the legislature can move anything forward? As I’ve said elsewhere, I think the point of the 1/4 rule is more or less a check against really bad ideas, the theory being that anything that gets 50 votes can’t be that bad — obviously, however, that “check” is not working at the moment. (Note that I’m NOT arguing that the 1/4 rule is a great idea, only that I think it’s fairly clear what it was supposed to accomplish.) Initiative petitions for laws, of course, can completely end-run the legislature no matter how bad the idea, witness the nearly-enacted total repeal of the income tax.
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Finally, back to political questions: certainly, the SJC could have done as you suggest by simply disposing of the case on political question grounds. Which would have left LIMITS as the last, arguably ambiguous word on what Article 48 means — though under your theory LIMITS should also be totally disregarded since there, too, no relief was awarded. But, obviously, they have not chosen that course, and we are left with the political reality of an SJC that has spoken its mind quite clearly, whether or not it should have. Susan Ryan-Vollmar of Bay Windows says they are “grotesque” judicial activists for doing what they’ve done — the problem, of course, is that she is thereby bashing the same SJC that decided Goodridge, thereby arguably playing into VoM’s hands on the judicial activism point. (Can’t you see the TV ad now: “Hey, even the state’s most prominent gay newspaper thinks the SJC is a bunch of grotesque judicial activists!” The subleties of dicta vs. grounds for decision will be difficult to explain in a 30-second TV spot.) All of these swords are double-edged.
I actually think BMG has been good at pointing out the hypocrisy of the Legislature. I sided with those that thought it was ok to kill the marriage amendment through parliamentary process — I know there is a difference of opinion with many here about that. I found out about what happened with the healthcare amendment here at BMG and it angered me enough to write letters to the Globe and Herald about it. I’m not sure that writing a couple of letters rises to the level of outrage, but I know I wouldn’t have done that had I not read about what happened here. (And, fairly soon after the deed had been done I might add.)
No.
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The issue did get an airing on BMG. But I suspect some of the fury was stoked by the Globe and other mainstream outlets.
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It reminds me of the coverage of the build-up to the Iraq war, in which the press creates a completely fictitious reality, forces it on its audience, and silences all mention of the truth.
My, my. It is to laugh.
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At least, Charley, thanks for the traffic.
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Mike
We should do this more often.
I posted this in Kira’s “Next Steps” diary, but wanted to be sure the ranting masses took a look at it too [aint disparaging you by calling you ranters – I fall into that category too, but I’m trying to have a sane moment]
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THis is something everyone can agree on, regardless of “process” philosophy.
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DEMAND DEBATE DEBATE TIME FROM SEN TRAVAGLINI
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One of the most onerous aspects of the past concon was lack of debate time due to Sen. Trav. zipping directly to a vote. I think we should all raise a loud and prolonged stink over this extraordinarily undemocratic move.
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To-do list:
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What y’all think? Are there other approaches that would work better with him?
Put these in a separate post so I can FP!
sorry for my disorganization. David asked me to move this into a diary. might be best to comment in there, if you wish to comment. thanks.