Tuesday, April 14, 2009

Gay power to the people

Some of you are going to think I'm being preposterously nuanced on this, but I'm in favor of gay marriage in Vermont but not in Massachusetts.

What's the difference? I defer to Abraham Lincoln's first inaugural address:

"(T)he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Lincoln was referring to the United States Supreme Court, and its disastrous decision in Dred Scott v. Sandford, 60 U.S. (How. 19) 393 (1857). But clearly the sentiment could apply as well to the decisions of state supreme courts.

Last week in Vermont, gay marriage became law thanks to the actions of legislators, the direct elected representatives of the people. But in Massachusetts, gay marriage is the law because of a four to three majority decision by the state's Supreme Judicial Court in Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003). In Massachusetts, the justices on their highest court are not direct elected representatives of the people; they are appointed by the Governor.

Massachusetts had been around for a colony and later a state for almost four hundred years when Goodridge was decided. I just personally think that when you have four hundred years of precedent that marriage can exist only between one man and one woman, that policy shouldn't be changed by the words of four out of seven judges. In America the judiciary serves the people, not the other way around.

4 comments:

SueMac said...

Ya don't quite get that judicial branch interpreting the law thing, do you? Seems to be a right-wing blind spot.

SueMac said...

"Massachusetts had been around for a colony and later a state for almost four hundred years when Goodridge was decided. I just personally think that when you have four hundred years of precedent that marriage can exist only between one man and one woman, that policy shouldn't be changed by the words of four out of seven judges. In America the judiciary serves the people, not the other way around."

I just reread your post and the complete ridiculousness of it has just popped out at me. I guess this means you feel that since many states such as Kansas had a long history of segregation, you disagree with decisions like that in Brown versus the Board of Education of Topeka. Logically, you also must believe that the Confederate States, with their long history of slavery, should have been allowed to decide for themselves whether to abolish the practice or not.

You've put yourself in a logical conundrum. Many advances in civil rights are done through judicial action precisely because the legislative branch refuses to act. The conservative objection to these advances is generally predicated upon your weak argument.

Chance said...

This argument seems a bit muddled to me. Judges adjudicate - It's what they do - It's the constitutional role devised for them. No reason has been offered for why judges should be allowed to rule on other matters and not those of equal protection clauses and marriage.

Certainly you are free to believe that the decision was WRONG but you seem to be suggesting that it should have not been in the scope of their role as judges to rule on this matter. If that is the case when are they allowed to rule on equal protection clauses and marital legislation? What makes this different from other legal matters? Under what circumstances would judicial review be permitted? Why is this different from every other matter brought before them?

While I'm asking questions... I'd like to know how the supreme court of Mass. silenced the will of the people. Have the people and their elected representatives been forbidden to amend the state constitution to prevent gay marriage? No? Then how has their will be blunted or denied? Does the failure of the people and/or their elected representatives to bring a constitutional solution up to address this not speak to some extent on the will of the people? Could it not, at least, be said that they lacked the will to settle the matter through amendment? Could lacking that will not be seen as permitting the new status quo of gay marriage to continue?

yakson said...

The Stonewall Rebellion was certainly not the first time in history that people who today would be referred to as gay, lesbian, bi and trans fought back against police repression.

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