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May 20, 2004

An Expanding Crack in the System

As the day has worn on, my mind keeps returning to just how stunning what's going on in government with respect to this marriage issue is. For the moment, put aside your beliefs and conclusions about the question itself and think about the mechanism of its progress.

From the Providence Journal article that I mentioned earlier:

It appears clear, however, that legalizing gay marriage won't happen in this, an election year.

Rhode Island is one of a minority of states whose laws are ambiguous when it comes to same-sex marriage.

Lawmakers submitted bills this legislative session to legalize same-sex marriage, and to prohibit it by defining marriage as the union of a man and a woman. But all those proposals appear dead, lawmakers say.

"A lot of representatives and senators would rather stay away from controversial issues in an election year," said Rep. Edith H. Ajello, D-Providence, one of the sponsors of the proposal to legalize gay marriage.

With the state next-door handing out marriage licenses and a public not sure what that means for their own state, the legislators consider keeping their jobs to be more important than doing them. They wish to be elected not because they feel they deserve the job, nor because they feel themselves actually representative, but because, well, because they wish to be elected. Bad timing — no vote.

But little matter. Along comes the attorney general who, although he is elected, is an enforcer rather than a legislator, so what the law is or becomes won't seem directly relevant to how well he is performing and, therefore, whether he deserves reelection. Nonetheless, he issues a carefully phrased statement on the question, which the legislators are too scared and lacking in principle to answer, saying essentially that it depends whether same-sex marriage conflicts with "public policy," and that such a thing isn't for him to decide. Ambiguity on top of ambiguity, and here's the tally: legislature, no comment; executive, not my department; judiciary... well.

The lone remaining branch is certain to be given its own opportunity to have a say. That opportunity has accelerated, because the "not my department" reply from Lynch, a representative of the executive branch, isn't quite so benign:

Judi proposed to Lee on Sunday in the rose garden at Roger William Park in Providence.

But they didn't rush up to apply for a marriage license early Monday -- they waited to hear what Rhode Island Attorney General Patrick C. Lynch had to say.

After Lynch said he did not see a prohibition against gay marriage in Rhode Island law, they drove to Worcester to file for a license. On Tuesday, it was off to the doctor for premarital blood tests, which came back today. ...

But while they know the issue may end up in court, the McNeil-Beckwiths believe the license is valid, citing Lynch's opinion. The attorney general said the law suggests the state would recognize any marriage legally performed in another state, "unless doing so would run contrary to the strong public policy of this state."

In other words, even though he declared it the job of another branch to decide the matter, it is as if he's given the go ahead. So, the elected body charged with making laws as the people's representatives is taking a pass. An elected official with no direct responsibility for anything other than enforcing the laws rightly passes, as well, although opening the way for legal challenges so wide that people believe he declared the matter legal. And now it will end up in the hands of — you guessed it — officials who are appointed for life and can only be reached by the people if "impeached by a majority of the house of representatives and convicted by two thirds of the senate."

I'm not going to make any predictions, but considering the unified advocacy of the media — from the state's major newspaper to its main talk radio station — I wouldn't be surprised if the legislature's election-year demurral isn't made permanent before the representatives get a chance to actually take a stand. The frightening possibility is that this may be the new paradigm for controversial issues — which will tend toward the "most important" side of the public ledger.

Similar arguments about a crack expanding through a government made brittle by politicians' weakness and judges' presumption apply to Massachusetts. Hadley Arkes argues that the weakest link in that state's balance of powers was the governor. Here's one point in a more-involved column:

... if the constitutional authority was really with the governor, to act for himself and the legislature, then it made the most profound difference that the governor flex that authority now himself: He could invoke his powers under the constitution; cite the error of the court in seizing jurisdiction wrongfully for itself; and order all licenses of marriage to be sent on to Boston, to his office, until the legislature, in the fullness of time, settled its policy on marriage. By an act of that kind he would have forced a change in the focus of the litigation: The task would fall then to the court to entertain challenges to the actions of the governor. If the judges summoned the governor to appear before them, there would no longer be any quibble over the question of whether the governor has standing before the court, or whether he would appear. And the court could be compelled now to face precisely the issue that the judges had skirted: whether the majority of four had themselves violated the constitution of Massachusetts. Faced with a tension of that kind, it was even conceivable that one of the wavering judges of the four might peel away, and in peeling away, leave the issue back where it belonged — in the political arena, with the governor and the legislators.

William Duncan concentrates on the legislature's complicity:

In 2001, a citizen coalition gathered 76,607 certified signatures (57,100 were needed) to place before the Massachusetts legislature a proposed constitutional amendment that, if passed, would have defined marriage as the union of a man and a woman and prevented the creation of a marriage equivalent. In order to be placed on the ballot, the measure needed to gain the support of 25 percent of legislators in two successive sessions. Evidencing a fear of the popular vote that bordered on "democraphobia," the Goodridge lawyers lobbied the attorney general and filed suit to prevent the legislature from considering the proposed amendment.

They need not have made the effort. The senate president ensured that the bill would not get a vote by simply ending the constitutional convention before such a vote could be taken. (The Supreme Judicial Court ruled that this violated the Massachusetts constitution, which calls for "final action" on initiative proposals.) If the legislature had voted at that time, the measure could have been on the November 2004 ballot.

The activists' quick recourse to the attorney general and to file a lawsuit suggests where they believe the ultimate authority to lie. Apparently, the legislature agrees, as Duncan suggests when he writes that "the new senate president proposed a civil-union law, but dutifully sent his proposal to the court for input before allowing legislators to vote on the idea."

All of these factors come together to suggest the trajectory of the debate into the federal sphere. Between the various arrogations, abrogations, and equivocations, the terms of the discussion are cycled and churned so dramatically that concepts of principle and precedent are meaningless. As Stanley Kurtz points out, civil disobedience swept aside arguments about federalism and Massachusetts's residency law for marriage before they were even tested. Moreover, in Goodridge, Justice Greaney cites the residency rule to assuage objections to the court's decision. Just four months later, lawmakers cited Goodridge itself as invalidating the residency rule.

At this point, I'm not sure what to think. It takes some effort to get up to speed on this matter, and I'm not confident that the American people will invest that effort in time to prevent — or even demand a vote on — nationalized SSM. The erosion of the walls between government branches blurs violations of separation of powers. The quick and specious characterizations of the issue as a simple civil rights issue confuse the emotions of a post-Sixties culture. And the facile references to safeguards, whose demises are already planned, are succeeding in bolstering citizens' natural apathy from one stage of the coup to the next.

That, to me, is the concern that transcends the particularities of same-sex marriage. For the overt issue, one can construct a dark solace by comparing same-sex marriage to other shifts in law and culture that have harmed marriage and, therefore, the basic family unit of society. Christians can find a less-dark peace in the knowledge that our spiritual obligations remain largely the same, only in a different (albeit more difficult) context. The danger that these comforts will be less capable of mitigating, however, is that the strategy that will have brought our nation same-sex marriage will be applied to any issue that can be made to fit the mold — capable of being spun into equal rights phrasing and of being litigated.

Hope is not lost, though, even on the matter at hand. Andrew Sullivan is either deceptive or delusional when he writes:

The major goal of the anti-marriage rights lobby was to provoke hysteria and backlash from the images of weddings for gay couples. But, in fact, the mainstream response has been either positive or neutral. Most people rightly fail to see how these couples' committing to one another hurts anyone else. And if it doesn't harm anyone, and brings such joy to so many, why stop it?

The backlash suggestions from every advocate against same-sex marriage whom I've read making any predictions are expected to coincide with the export of Massachusetts's marriages elsewhere, and that has yet to come. When it does, increasing numbers of people may come to see what folks such as myself have been arguing all along: even if the sociological arguments are too abstract, there are more direct and palpable ways in which the arrival of same-sex marriage affects us all adversely.

Odd that Mr. Sullivan doesn't appear to have even considered whether the lack of hysteria on M-Day among those who oppose SSM indicates that their motivation isn't hate and bigotry, after all. Maybe theirs is a reasoned, principled argument. Well, soon enough, advocates for SSM will have their own opportunity to prove that they stand on principle. Sullivan in particular — from February:

If all legal precedent fails, if DOMA is struck down, if one single civil marriage in Massachusetts is deemed valid in another state, without that other state's consent, I will support a federal constitutional amendment that would solely say that no state is required to recognize a civil marriage from another state. By that time, we might even have had a chance to evaluate how equal marriage rights play out in a single state or two.

We'll see. I can only hope to be stunned by what actually occurs in that case.

Posted by Justin Katz at May 20, 2004 9:41 PM
Marriage & Family
Comments

I know you're not holding your breath on that one, Justin, but...well, don't.

Posted by: Sage at May 20, 2004 10:33 PM

With the state next-door handing out marriage licenses and a public not sure what that means for their own state, the legislators consider keeping their jobs to be more important than doing them.

This is silly. They may believe that doing their job means not changing the law right now. But most politicians tend to try to stay away from polarizing issues in election years, anyway. This is hardly something new, or unique to same-sex marriage

You also seem oblivious to the irony of your impatience for your local politicians to act one way or the other in light of your previous counsel to take the gay-marriage thing slowly and not rush into major changes of law or policy. Are you now suggesting that your pro-same-sex marriage legislators should quickly act to formalize legal recognition by Rhode Island of same-sex marriages performed in Massachussetts, on pain of being accused of not doing their jobs?

The quick and specious characterizations of the issue as a simple civil rights issue confuse the emotions of a post-Sixties culture. And the facile references to safeguards, whose demises are already planned, are succeeding in bolstering citizens' natural apathy from one stage of the coup to the next.

I have yet so see an argument that can pass the laugh test from you or anyone else in support of the claim that same-sex marriage isn't fundamentally a civil rights issue. To the extent that you even attempt to make a serious argument at all, it consists of appeal to tradition for tradition's sake (all the business about "redefining" a thousands-of-years-old institution) and vague assertions of harms to children, families and society, assertions you are utterly incapable of supporting with evidence.

Posted by: Jon at May 20, 2004 10:53 PM

The backlash suggestions from every advocate against same-sex marriage whom I've read making any predictions are expected to coincide with the export of Massachusetts's marriages elsewhere, and that has yet to come. When it does, increasing numbers of people may come to see what folks such as myself have been arguing all along: even if the sociological arguments are too abstract, there are more direct and palpable ways in which the arrival of same-sex marriage affects us all adversely.

If this supposed “adverse effect” is judicial imposition of same-sex marriage on states, that has already happened, in Massachussetts, and it doesn’t seem to be having the galvanizing effect on same-sex marriage opponents that you want it to. If the experience with same-sex civil unions in Vermont, and gay marriage in other countries, and interracial marriage in this one, is any guide, support for gay marriage is likely to increase in states where it becomes legal. There may be an initial backlash, as there was in Vermont, but if so it seems likely that it will soon give way to increased acceptance. On our side, we'll have hundreds or thousands of living, breathing, happy, smiling gay couples, and on yours, you'll have your abstract sociological "arguments" and your even more abstract ones about process. Even if I thought those arguments were correct, I still wouldn't think they will be any match in the court of public opinion for the reality of happily married gay couples.

Odd that Mr. Sullivan doesn't appear to have even considered whether the lack of hysteria on M-Day among those who oppose SSM indicates that their motivation isn't hate and bigotry, after all.

Hate and bigotry do not always manifest themselves as hysteria. In fact, most of the time they don’t. They’re more subtle than that, especially amoung those who intellectualize their prejudice. I think the low-profile of most gay marriage opponents since Monday is a calculated tactic to avoid the highly damaging public appearance of being negative and mean-spirited in the midst of so much joy amoung gay people.

Posted by: Jon at May 20, 2004 11:27 PM

He he he. Jon, you are so far left there's no point even trying to communicate with you. But I can't resist trying.

"I have yet so see an argument that can pass the laugh test from you or anyone else in support of the claim that same-sex marriage isn't fundamentally a civil rights issue."

That says very little about the anti-SSM arguments and a great deal about your closed-mindedness and lack of exposure to diverse points of view.

I love this one:

"Hate and bigotry do not always manifest themselves as hysteria. In fact, most of the time they don’t. They’re more subtle than that, especially amoung those who intellectualize their prejudice. I think the low-profile of most gay marriage opponents since Monday is a calculated tactic"

So people who oppose SSM are simultaneously 1) hate-filled, 2) bigoted, 3) subtle, 4) full of intellectualized prejudice, and 5) calculating. Wow! I didn't know I could be all those things at once. How did you acquire this special gift of being able to read people's minds and know how hate-filled they are despite their subtlety?

Or could it be that you're just projecting your bogeymen on anyone whom you don't understand, and thereby saying much more about yourself than about us? You just said large numbers of people who you've never met and clearly don't understand are driven by hate, prejudice, and bigotry. That was an incredibly hateful, prejudiced and bigoted statement.

Posted by: Ben Bateman at May 21, 2004 2:00 AM

Ben Bateman

No, of course you're not motivated by hate, prejudice or bigotry. Neither were opponents of civil rights for black Americans forty years ago. That wasn't about hatred and bigotry, either. It was about state's rights. Or social stability. Or racial purity. Or God's will. Or something. Anything but bigotry. Just like you.

Right. That must be it.

By the way, your compatriots seem to be about ready to throw in the towel. Cal Thomas and Max Boot just in the past couple of days. I wonder how long it'll take you.

And the supposed backlash seems further away than ever

Posted by: Jon at May 21, 2004 4:25 AM

Jon, I thought you had arguments for SSM that were so foolproof that no rational person could disagree with them. Now all you've got is personal attacks and the gleeful assertion that there are enough corrupt judges and other governmental officials to subvert democracy and give your side victory.

If your side is so intellectually superior, why do you need the insults? Why rely on corrupt officials to avoid the democratic process? Why not present your arguments in the public arena of ideas and let us all stand in awe of your super intelligence?

Posted by: Ben Bateman at May 21, 2004 1:52 PM

We are presenting our arguments in the public arena, and the public is accepting them. You're presenting your arguments, and the public is rejecting them. It's not just support for gay marriage that's growing, it's support for social and legal equality across the board for gay people that's growing. And this isn't a short-term or minor trend, it's a strong and entrenched one, demonstrated repeatedly by long-term public opinion studies like the University of Chicago's General Social Survey.

The question is no longer whether America will legalize gay marriage. It's pretty obvious that it will. The live questions now have to do with how long it will take and what route it will come by.

Posted by: Jon at May 21, 2004 11:23 PM

Jon,

Interesting that you're so confident. Why then are you so concerned with the rhetoric of the other side? After all, say what we might, it's "pretty obvious that it will" not make any difference.

More broadly, one must wonder why, if your side benefits from the broad "entrenched" support, why go through the courts?

Posted by: Justin Katz at May 22, 2004 11:30 AM