I posted here last November that the Massachusetts Supreme Court (and more particularly the plaintiffs) was making a strategic mistake by attempting to short-circuit the legislative and/or initiative process with regard to gay marriage. I felt that this kind of major social change cannot be forced by the courts -- we saw this with Roe v Wade.
Only after there is significant nationwide majority support for gay marraige can the courts properly intervene -- dealing with the recalcitrant stragglers -- as has most recently happened with the sodomy ruling, and previously with issues such as interracial marriage. Not so much a "Living Constitution" argument, as an implementation of the 14th Amendment's "privileges and immunities" clause.
Bush's SOTU comments on gay marriage and the proposed Federal Marriage Amendment are exactly the reaction I expected. In a republic, one can accept the decisions of elected legislatures, or the People by initiative, even if you don't like the results. But judical fiats are not seen as legitimate. The only exceptions to this are where the Constitutional basis is utterly obvious, and the status quo is unacceptable (e.g. Brown v Board of Education).
So, I reiterate -- attempts to judicially mandate gay marriage will backfire, as the current majority is against it, does not see the Constitutional imperative, and will do whatever it takes to slap down adventurous courts. Forcing the issue of the FMA is not in anyone's interest.
I sympathize, but must ask that if something is morally, or constitutionally just today, why wait for the will of the people to accept it tomorrow?
Posted by: boifromtroy at January 22, 2004 02:59 PMBecause if you don't wait, you will get nothing, and less than nothing. Even "pookey butt" status will be lost to you. For your lifetime.
Politics is the art of the possible. If the will of the people is against it, but the constitution allows (or even mandates it), there is a good chance they will change the constitution rather than submit. Which would be a bummer, as the movement is towards acceptance.
But if you use a cattle prod to make the people move faster, they will stop in their tracks, grab a 2x4 and hit you bloody with it. Simple human obstinacy. And then, having done that, they'll be unwilling to listen.
I often wonder what would have happend in the 1890's if the Supreme Court had decided Plessy the other way, rather than ignoring the Constitution as they did. Public opinion and political reality at the time sugegsts to me that the 14th Amendment would have been repealed in reaction. Which would have made the eventual civil rights movement much harder. Was this unjust? Certainly. Was justice possible at that time? No.
Posted by: Kevin Murphy at January 22, 2004 03:22 PMP.S. "moral" arguments here are a dime a dozen, and span both sides. The only way to win this and make it stick is to get more votes.
Posted by: Kevin Murphy at January 22, 2004 03:24 PMBingo. Ignoring democratically enacted laws in favor of "justice" is a formula for lawlessness. The rule of law requires all of us to accept some results we don't like and don't consider to be just.
Posted by: Xrlq at January 22, 2004 05:03 PM