A group that wants to ban gay marriages in Massachusetts said Tuesday it has collected enough signatures to put the question before voters next year. [...] If approved by voters, the question would amend the state Constitution to define marriage in Massachusetts as a union between one man and one woman.
Aw, how very special of them! And only, what, two years behind the curve, too.
Gay activists called the question unconstitutional because it would deny gay and lesbian couples the right to marry.
Um ... well, yeah. That's kind of the point, really. And in a state with an existing (if both unenforced and technically unenforceable) sodomy law, not all that problematic legally. And let us state once again for the newcomers: when you amend the constitution, whether of one state or the entire United States, the new amendment by definition CANNOT be unconstitutional. Stupid, yes. Bigoted, yes. A very bad idea, yes. Unconstitutional, no.
The question would also prohibit the state from bestowing marriage-related benefits to unmarried couples, a move activists said would deny same-sex couples economic benefits available to heterosexual married couples.
Again, that's part of the point.
Look, people, you'll get nowhere by pointing out the obvious, especially when the obvious is not in and of itself either illegal or unconstitutional. What you have to do is to convince people that doing this is both wrong and against their own interests, that somehow, this can be made to backfire against them. The problem is, there's not really any specific appeal that can be made in this case other than to people's sense of fairness and decency. As long as the sodomy laws are both unenforced and unenforceable, you can't use the "state regulating your bedroom behavior" approach. There's not really a good approach to take. (Other than appealing to people's sense of irony and pointing out that allowing us to have civil marriage also requires us to be eligible for painful civil divorce.)
Am I saying not to fight this? Of course not. I am saying that the approach probably needs to be both more sophisticated in some ways, and more blunt in others. Unfortunately, I don't know what that approach would look like. All I know is that lying to people (or having the facts wrong, which isn't any better) isn't the right way to go about it.
Replies: 3 comments
i've read another argument against this, by andrew sullivan, i think. basically its this- marriage leads to a kind of stability that we as a society should encourage to make our world more, um... stable? single men are dangerous, be they straight or gay, and the more tax-payer couples with mortgages we can muster, the better.
Posted by ross @ 12/05/2001 07:27 PM CST
Seems to me that a State constitutional amendment could violate the US Constitution, and in that case the Supremacy clause would kick in and nullify it.
Posted by Steven C. Den Beste @ 12/06/2001 12:00 PM CST
As far as the "stability" argument goes, people would have to be convinced that gay relationships are stable, when their reputation is otherwise. Besides, that only gets at men, and not women. (Leaving aside the issue that many gays would say that we should have the ability to marry of right, and not because of a second-order consideration that we would help make a stable society. That said, I think the stability argument would carry more weight than the rights argument; I just don't think either one gets you very far.)
As for the Supremacy clause, yes, it's true that it could be an issue, technically. However, unless the state law was terribly badly written, they could make it follow DOMA, and I believe (although I'm not certain) that the Court has already issued an advisory opinion during the drafting process that the federal DOMA was constitutional. Once that's done, all a federal court would have to do is determine whether or not any federal constitutional issues are involved. Once the district court had determined that there were none, it would be likely that the Appeals and Supreme Courts would simply refuse to hear the case; under current doctrine, absent federal issues, the state supreme court is the final arbiter of any state's constitution.
Posted by iain @ 12/06/2001 03:45 PM CST
Copyright © 2001, Iain Jackson, after-words.org
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