In today's Schulman v. Attorney General, the Massachusetts Supreme Judicial Court rejected a pre-election challenge to an initiative constitutional amendment that would overrule the court's same-sex marriage decision. The Massachusetts Constitution bars initiatives from "revers[ing] ... a judicial decision," but the court unanimously (and in my view correctly) held that this applied to attempts to reverse a decision as between the two parties involved — it doesn't bar the overruling of a judicial decision that interprets the state constitution.
But Justices Greaney and Ireland wrote a separate concurrence to address a different matter (emphasis added):
In Goodridge v. Department of Pub. Health, we held: “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are ··· homosexual. ‘The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984)···· Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under the law protected by the Massachusetts Constitution.”
There can be no doubt after the Goodridge decision that the Massachusetts Constitution protects the right of a couple who wish to marry, and are otherwise eligible to marry, to obtain a marriage license, regardless of gender. It is equally clear that the proposed initiative is directed toward withdrawing this right from a distinct segment of our community, thereby prohibiting, as matter of constitutional law, same-sex couples from committing to civil marriage and from attaining the multitude of legal rights, and financial and social benefits, that arise therefrom. The proposed initiative cannot be said to further a proper legislative objective (as was categorically decided by the Goodridge court, there is none). The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form. Our citizens would, in the future, be divided into at least three separate and unequal classifications: heterosexual couples who enjoy the right to marry; same-sex couples who were married before the passage of the amendment (but who, if divorced, would not be permitted to remarry someone of the same sex); and same-sex couples who have never married and, barring the passage of another constitutional amendment on the subject, will be forever denied that right.
There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by art. 1 of the Massachusetts Declaration of Rights.... [T]he Goodridge decision may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution.
If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable. We may then give careful consideration, in view of what has been said above, to the legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document's elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits.
This strikes me as deeply wrong: The Massachusetts Supreme Judicial Court is saying that its judgments about equality and fairness under the Massachusetts Constitution trump not only the judgment of the legislature, but the judgment of the people amending the constitution itself.
And this, it seems to me, goes to the heart of sovereignty. Judicial review has pluses and minuses, but its premise (which I believe generally justifies it) is that the people have ordained a Constitution as the supreme law of the land. Judges must therefore enforce this supreme law as against any legislative enactments, or even the enactments of the people voting as ordinary legislators. The judges are thus acting as servants of the sovereign people, carrying out the people's instructions. One problem, of course, is that sometimes the people of today may want something other than what the people of the constitution-writing era did; another is that judges may wrongly interpret constitutional provisions. But at least in principle (and in practice, especially in states, where the constitutions are easier to amend than the federal constitution) both problems can be solved through the constitutional amendment process.
But here the two judges are suggesting that the ultimate decisions are to be made by judges, and the people have no right to the final say on the subject. Under this theory, the judges end up being the ones who are sovereign, with the legal principles that they set forth being immune from control by the people. That, I think, would be a very bad result. Even if one thinks that sometimes judges may use this sovereign power in fairer ways than the people do, the same can be said about dictatorship or monarchy (or even dictatorship or monarchy limited to particular topics). The premise of democracy, including of constitutional liberal democracy, is that the best — not the perfect, and often not even very good (consider Churchill's famous line about democracy), but the best — place to repose sovereign power is in the people, not in Philosopher-Kings.
Three details:
1. The Massachusetts Constitution does exclude certain topics from the scope of the initiative; but that at least is a limitation on sovereign power that the people of the past expressly adopted. If anything in the Massachusetts initiative process is unconstitutional, it is the attempt to entrench this limitation as being forever unamendable ("No part of the constitution specifically excluding any matter from the operation of the popular initiative and referendum shall be the subject of an initiative petition; nor shall this section be the subject of such a petition"), because that would leave sovereign power forever in the hands of the people of the past, rather than of the people of the present. Yet even that is better than leaving it in the hands of the Justices, who are adding to the prohibited matters section of the constitutional amendment provision.
2. To my knowledge, the Massachusetts Constitution provides no standard constitution-making alternative to Massachusetts voters besides the initiative constitutional amendment (as opposed to, say, impeachment, which isn't itself a constitution-making process) and the legislatively proposed (and then popularly voted on) constitutional amendment; the two Justices certainly don't point to one. And presumably the Justices' reasoning would forbid legislatively proposed constitutional amendment overruling Goodridge just as it would apply to initiative constitutional amendments. So it's not just a matter of the two Justices saying, "you can't use the initiative, you must use some other process instead" — as I read them, they're saying that the voters lack sovereign power over this subject at all.
3. It is possible for an initiative constitutional amendment to violate the U.S. Constitution; but this is not the argument that the two Justices are making in the body of their opinion. They do suggest such a possibility in a footnote, but devote the body of the opinion to the argument that the amendment might violate the Massachusetts Constitution. The difference is important, because any Massachusetts Supreme Judicial Court decision striking down a state constitutional amendment on federal grounds would be reviewable by the U.S. Supreme Court; on federal matters, the state supreme court has no hope of usurping sovereignty. On the other hand, a decision striking down the amendment on state grounds would be final, as far as the federal courts go, unless the courts conclude — unlikely, given current precedent — that such a state judicial decision violates the Republican Guarantee Clause of the U.S. Constitution.
UPDATE: Some commenters suggested that the two Justices' position might be sound, on the theory that (1) if the initiative passes, it will be inconsistent with another part of the state constitution (as the state Justices have interpreted it), and (2) it may therefore be sensible (or at least poses "an intriguing question" of constitutional methodology) for the Justices to decide that the older provision prevails over the new one.
That seems to be quite the wrong approach for dealing with constitutional amendments. The point of amendments is to change the constitutional status quo; that oftens (on some definitions of the terms, always) involves superseding an old provision — or an interpretation of an old version — with a new one.
Just to take a few examples from the more familiar to us federal Constitution, the Eleventh Amendment changed that part of article III, as interpreted by the Supreme Court, that conveyed jurisdiction over certain disputes to the federal courts. The Twelfth Amendment replaced part of the original Constitution's system of electing the President and Vice-President. The original Constitution left slavery to the states (even to the extent that it was silent about slavery, that under the constitutional scheme left states to make the decision); the Thirteenth Amendment was inconsistent with that old constitutional rule, and superseded it. The original Constitution could have been (and, despite Madison's arguments to the contrary, likely would have been) interpreted to let the Congress exercise its enumerated powers in ways that interfered with speech, or involved unreasonable searches; the Bill of Rights was inconsistent with that old structure, and superseded it.
So when a new constitutional provision specifically sets forth a result that is contrary to that mandated (or mandated in the view of the courts) by an old provision, the new provision should prevail: The whole point of constitutional amendments is that they replace the old with the new. Anything else leaves sovereignty either in the people who enacted the old provision, or in the judges who interpreted that old provision, or in the judges who decide based on some subjective judgment whether the old provision should prevail or the new one. The last-in-time-prevails rule is the only proper rule here. (I set aside the situation where the new rule doesn't clearly contradict the old rule, for instance when the new rule is more general and the old is more specific; in this case, the new rule — no same-sex marriages recognized — would definitely contradict the old — recognition of same-sex marriages mandated by the state constitution.
Related Posts (on one page):
- Laurence Tribe Responds About the Massachusetts Justices' Concurrence:
- Who Is Sovereign in Massachusetts -- the Justices or the People?
If this statement does not deserve impeachment or the Mass. equivalent, nothing does. No other statement can show more arrogance than for a judge to say that his or her ruling is of greater legal weight than the constitution of that state.
I agree that such a decision by the Massachussets Supreme Judicial Court would violate the Republican Guarantee Clause of the U.S. Constitution. I also agree that courts have held and probably would continue to hold that the Republican Guarantee Clause is non-justiciable as a political question. That does not necessarily mean that the Massachussets Supreme Judicial Court would stand, however. Congress has the authority to enforce the Guarantee clause.
Instead, the Justices are saying that if the initiative passes, the Constitution will contain two "apparently mutually inconsistent and irreconcilable" provisons -- each of which was ratified by the people. (I don't know if that's true or not -- Is the proposed provision, for instance, written as an exception to the "protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits" found elsewhere in the Constitution? If so, there'd be no conflict. But I'll assume for sake of argument that there would be.)
So the question then would become how a court should reconcile two mutually contradictory constitutional provisions, both of which were the handiwork of the people -- not whether the Court should prefer its own conception of the Good to that of the people.
Our instincts might be that the Court should privilege the later-enacted provision, because the "dead hand" in that case is not quite so dead, and because our traditions generally adhere to a "last-in-time" presumption when two equally authoritative directives conflict (e.g., a treaty and a statute).
But that's not an inevitable way to think about constitutional interpretation. Perhaps the canon of construction should be, instead, to privilege the constitutional provision that is least antagonistic to the structure and language of the entirety of the remainder of the document. Or perhaps some other interpretive norm. And the Constitution itself might not provide any way of choosing between these norms. In order to do so, then, the Court would need to develop some rich theory about why constitutional provisions, not enacted by the current polity, should nevertheless trump other sources of law. And that, in turn, might depend on a sophisticated notion of the "people" through time. (See, for instance, recent books by Chris Eisgruber and Jed Rubenfeld.)
Of course, it's highly likely that the Court would privilege the later-enacted provision . . . because that's the way things have always been done. But Greaney &Ireland sure have teed up an intriguing question about whether that's invariably the right methodolgy -- a question that might depend on why we bind ourselves to constitutions in the first place (or why Bay Staters did, in any event).
In any case, the Greaney/Ireland concurrence is very valuable in that it's a plea to the People of Massachusetts not to ruin their Constitution by acting contrary to the noblest traditions and aspirations of that document.
I can see two obvious ways of resolving that situtation:
1) The amendment trumps the older provision to the extent the older provision is contradictory. (This would work in this instance, but I can think of situations in which this method might not be workable: for example, suppose a provision adopted by initiative conflicted with several previously-existing constitutional provisions such that the conflict could not be sensibly resolved in a consistent way.)
2) The newer provision is a nullity to the extent it contradicts an older provision that it does not expressly overrule. (For example, in this case, the proposed provision would have to expressly state that it was creating an exception to the Mass. constitution's guarantee of equality under the laws.) This is I think what Justices Greaney and Ireland are positing might be the solution.
I do not see that there is an obvious democracy-favoring option between these two choices. Option #1 would seem to give the most effect to the will of the voters. Option #2 would seem to promote initiative proposals that were more informative with respect to the question of how the proposed provision would change the existing constitution, and arguably would ensure that the results of initiatives better reflected the actual will of the voters.
Incidentally, he asks:
Is the proposed provision, for instance, written as an exception to the "protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits" found elsewhere in the Constitution?
At least not explicitly. The text of the proposed amendment is as follows:
"When recognizing marriage entered after the adoption of this amendment by the people, the Commonwealth and its political subdivisions shall define marriage as only the union of one man and one woman. "
Here is the existing portion of the Massachusetts constitution at issue:
"All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." (Art. of Amendment CVI, ratified Nov. 2, 1976.)
Maybe we should give some credence to the idea that judges might actually be playing politics along with everyone else. This certainly makes the game more interesting, and I think it might make the amendment less likely to pass in the first place. (Which could be the goal.)
Or, it could just piss people off. This seems equally likely.
And see if you can get through this without choking on the hot air: "legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document's elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits"-- well, I didn't realize that all subsequent amendments to be valid must not "look so starkly out of place in the Adams Constitution." Those "constitutionally defined" liberties, by the way- if the constitution is amended to "define" them in a different way, or delete some from the "definition," isn't the venerable Adams Constitution "defined" in a different way now?
Who better to read the tea leaves of what "looks in place" with the Adams Constitution though, than these navel-gazers willing to overrule the specific wishes of voters?
Although I strongly support same-sex marriage as a matter of statute, I am convinced the federal constitution does not command it, and very doubtful that most if any state constitutions do; I am willing to accept that Massachusetts's does. But the idea that an amendment which expressly overrules a decision on state constitutional grounds only, violates the state constitution, is absurd.
1) Unless I am totally misunderstanding what you said in your first paragraph, I think you've got it wrong. The people cannot override a judicial decision by initiative petition, but they can amend the Constitution out from under that decision by initiative petition.
2) As I've said before, when 4% of the population tries to turn the laws and culture of the other 96% upside down, they had better have some very good reasons or they are going to have a fight on their hands. Looks like they are getting the fight.
3) Much of the call for gay marriage, as I read the entrails, is not so much to be able to say that "we are married" as to be able to take advantage of the various laws and the privileges written therein which affect married couples. Fair enough, and about time to extend those laws and privilegs to same-sex couples, whether married or not. But ultimately, most of those laws were written to benefit the family as a child-raising institution. Perhaps we should separate the benefits for children from the benefits for their parents or "married" couples and extend the latter benefits to all "couples," whether official (married) or self-declared (civil unions or just a declaration of being a cohabiting couple).
4) Finally, having done 3), let's simply get the government out of the marriage business. You want to get married? Go find a church that will perform the ceremony for you and remember to inform the Post Office and the phone company. Register with the town clerk as s "couple" if you want to take advantage of any laws and government programs for couples. In time, your children - whether natural or adopted - will be eligible for various government benefits and the protection of (or obligation under) the laws.
I'm very gratified to see your rejection of the concurrence by Justices Greaney and Ireland. You are absolutely correct when you say that judges are supposed to "act as servants of the sovereign people, carrying out the people's instructions." Which begs the question: Do you really think that the sovereign people who adopted the Adams Constitution really to meant to require recognition of same-sex marriage? If the answer to that question is no, which it surely must be, why would you oppose a federal amendment that does nothing more than ensure popular sovereignty with respect to the question of whether to recognize same-sex marriage. Here's what such an amendment would look like:
NOTHING IN THIS CONSTITUTION OR IN THE CONSTITUTION OF ANY STATE CREATES A RIGHT FOR A PERSON TO MARRY ANOTHER PERSON OF HIS OR HER OWN SEX. NOTWITHSTANDING THE FOREGOING, A STATE MAY CREATE SUCH A RIGHT UNDER ITS OWN CONSTITUTION BY AMENDING IT TO PROVIDE THAT A PERSON MAY MARRY ANOTHER PERSON OF HIS OR HER OWN SEX.
If you truly believe that the role of the judges is to carry out the instructions of the sovereign people, you must reject the judicial imposition of same-sex marriage, even if you support same-sex marriage as a policy matter.
The Later in time has to rule, otherwise we are bound by old laws. Be it statute or constitution. I feel like I'm in the twilight zone. In any event, it goes to show how far lawyers will go to distort the law.
Aren't men who marry pigs and women who marry donkeys subject to even MORE invidious discrimination than men who marry men??
I fail to see how these arguments for the inability of the majority to regulate the definition of and eligibility for "marriage" to be inapplicable to all sorts of couplings.
Says the "Dog"
This is bad. First of all, what business does the federal government have telling ALL of the states what their individual Constitutions mean? Some state Constitutions have "organic" clauses that are designed to "grow" much more robustly than the federal Constitution. Second, this amendment would arguably prevent a state legislature from enacting a gay marriage statute without first amending the Constitution. Where's the people power in that?
As to your point #2, 96% of the population of the Commonwealth of Massachusetts has not opposed gay marraige at any time in recent memory. Pre-Goodridge, a slight majority opposed it; more recent polls suggest that a sizable majority support it.
To the extent your point #2 -- i.e., that gay people should be wary of trying to alter long-standing traditions -- your advice in points #3 and #4 that gay people should undertake to wipe out civil marriage entirely does not seem well taken.
Rob Johnson, JunkYardLawDog: I respectfully suggest that you read the decision in Goodridge to see how the points you raised are addressed.
Really? They already know what all the future arguments will be and what all the future research will reveal, and have been able to preclude everything in advance? Now that's omniscience.
Registering with the town clerk as a couple is what we call civil marriage. It takes $25, a couple, and a witness.
Those numbers are laughable, at least if you're trying to make any serious point. I suppose the 4% is supposed to be the fraction of Americans who are gay. But it obviously isn't only gay Americans who support gay marriage. A recent nationwide poll found 58% opposed. That leaves a hell of a lot more than 4% who aren't.
if the people of Massachussets decide to amend their Constitution, then that is their choicea and that's the law of that state. Case closed. Similarly, if the people of the US want to amend the Constitution to throw all blue eyed people into slavery, we can do it. It would be morally repugnant and totally inconsistent with the principles of the document but it would be valid and I'd expect judges to enforce the provision.
Wrong. Saying that there is no constitutional right to same-sex marriage, would not prevent the legislative recognition of it. State legislatures would retain the ability to recognize same-sex marriage; courts just couldn't impose it.
Chris also says:
Article IV, Section IV. Read it. At its core the Republican Guarantee clause protects popular sovereignty. See Akhil Amar, The Central Meaning of Repulbican Government, 65 U.Colo.L.Rev. 749 (1994). A narrowly crafted federal marriage amendment, like the one I described, does nothing more than ensure popular sovereignty, which, pursuant to Article IV, Section IV, is not only the role--it's the obligation--of the federal government.
As disturbing as this truth is, it is exactly right. However, that's also what the second amendment is for.
I've read Goodridge. Have you read the New York Court of Appeals rejection of Goodridge inHernandez v. Robles? The federal marriage amendment I favor would do nothing more than ensure the result in Hernandez.
I dont know MASS. marriage statute, but i know Illinois', like most, limits marriages to a)people of a certain age of maturity (usually adults 18 or older or if 16, 17 with parental consent)and which prohibits people of too young an age from marrying at all b)people not already married (hence multiple spouses are likely out) c)people not related by blood to a certain degree (brother/sister no good, distant cousin may be okay)4)marriages that don't violate public policy for some other reason (i.e, a marriage whose consumation would violate some criminal law, such as one outlawing sex with animals or between adults and children or the public policy of disfavoring arranged marriages where consent of one (or both) of the spouses is absent).
As far as the Mass. Court's decision is concerned, I understand the dilemma to be (as noted by a previous commenter)...can the state const. be amended if that amendment would violate other provisions of the same document? Some have argued the later (or more recent)amendment should control, which is certaintly an acceptable argument.
However, I still have a problem with an amendment directed to a specific practice (marriage) that would presumably violate other, more broad provisions, such as those ensuring equality (generally speaking) to all citizens. If an exception to the equality provision can be carved out for one thing - marriage, does this not invite the erecting of a slippery slope that other exceptions to the equality right or other bedrock constitutional principles can also be added by amendment? How many exceptions are allowed before the specific provision ensuring equality becomes pointless?
Im a criminal practitioner, so the 4th amend example jumps out. How many exceptions to the warrant requirement can be allowed before the exceptions swallow the amendment itself?
I imagine a prohibition on double jeopardy is in their state constitution. But what if the citizens, in a spate of recent crimes that for some reason are hard to prove -directed against certain vulnerable people, for example sex crimes against children- motivated the citizens to erect an exception to double jeopardy for child pornography prosecutions? Is this then acceptable to do, if the citizens wanted it and felt they needed it and followed proper procedure to do so?
Assuming the proposed marriage amendment goes forward and passes, what happens two generations from now when a new group of citizens passes another amendment reversing this one, and then another reversing that 50 yrs later, ad infinitum? When does it become a practice in absurdity?
I think in some instances, such as this one, where an amendment is proposed on narrow grounds directed to a specific group, that would presumably (in Mass. according to the Mass Sup Ct's intepretation of their own const.) violate other constitutional rights enshrined for the benefit of ALL citizens should fail. The broader equality right given to ALL citizens should control over the restriction of one aspect of that right to only a subset of said citizenry, otherwise, the general right is not a general right at all, but is instead qualified. Could it have been the intention of the people who passed the previous constitution that its provisions should apply equally to ALL citizens, with the qualifier: unless and until some future citizens decide to single out a single group for different treatment, for whatever reason they see fit so long as they get the proper votes and follow the proper procedure to amend the const.? Very interesting questions indeed.
It's already been noted that the Lederman position could lead to the situation in which the "dead hand" of past voters controls the current governance of the living. That is bad enough. But, of course, his position doesn't really put the dead in charge. The individuals it truly empowers are the judges, who alone will be able to create the "interpretive norm[s]" and develop the "rich theory" which will enable them to determine which new constitutional provision lives and which is to be denied. It also provides a ready-made, convenient rationalization for this neat trick; Heavens, no, the judges aren't enforcing their own preferences! Perish the thought! They merely interpret and enforce the laws of the dead, who, for some reason, have as much legitimacy as those enacted by the people who currently walk the earth.
I wish I could say that this notion would be inherently terrifying to anyone who believes in democratic governance. But not to certain people, at least with regards to some topics.
An illustration would probably be easiest. There is no federal constitutional right to an appeal in criminal cases. But if the state grants a statutory right to appeal, convicted defendants have an enforceable 14 amendment right to one. By way of hypothetical, Suppose Mass. were to amend the state constitution to deny gays the right to appeal criminal convictions. Now even though gays aren't a protected class and there is no federal constitutional right to appeal criminal convictions, a federal court would unquestionably void this state constitutional provision.
You can make a similar (though not identical) argument here. Having determined that there is no rational basis for preventing gays from marrying and, in fact, several thousand gays having already married, you can at least argue that Mass. cannot now decide to discriminate against not only gays but different "types" of gays, i.e. those married before the amendment took effect and everyone else. "Getting a wild hair" won't pass 14th Amendment scrutiny even if your wild hair is inserted in the state constitution rather than in a statute.
There are some semi-similar cases. IIRC ten years ago or so, Colorado attempted to amend its constitution (by initiative, I think) to make it impossible for the legislature to pass laws granting rights to gays. The Colorado Supreme Court struck it down on the grounds that, even though gays aren't a protected class, it violates the federal constitution to make them second-class citizens.
Not to be rude, but wasn't your post just a long-winded way of saying, "Maybe the people aren't, or shouldn't be, sovereign after all." If that is what you are saying, you're right, it is "very interesting," but interesting in a very disturbing way.
Alternatively, one may hold the view that no person(s) should ever be sovereign over another person, and that the only legitimate law is law that upholds individual liberty---all other laws being a usurpation ultimately based on the barrel of a government agent's gun.
To limit the the perceived foolishness that you forsee, you do have to get a supermajority to support the amendment (at least at the federal level - I don't know about the MA constitution but) so at least we have to have a lot of fools. But with a democracy, you get the government you deserve.
Oh for fun for the "amendments can't curtail rights" crowd, the MA Constitution was amended in the 1800s to limit the voting rights of immigrants with its 23rd amendment. (Couldn't vote for the first two years) This however, was repealed. By the 26th amendment.
I'm scratching my head to see where you guys are coming from, and I think I've decided the real problem is where your claims would go.
CJ Roberts famously preached the virtues of judicial "humility" during his confirmation hearings. Rarely has it been as absent as appears to be the case at the SJC.
In Constitutional Law, there is a principle of "non-retrogression"; a thinly disguised one-way ratchet of a rule that makes it difficult for legislatures to recognize fewer rights than courts have previously found. O.K., perhaps as a default rule of construction this does tolerable violence to democratic lawmaking. But, should the people of my former state vote to reverse the SJC, appeals to "consistency" with other constitutional provisions seem utterly laughable. When can we expect a "one person one vote" challenge to the composition of the U.S. Senate? Doesn't the two-term limitation undeniably constrict rights otherwise promised by the Constitution?
Your comments (and the concurrence) treat the equality principle as both self-executing and inviolable. It is neither. Marriage equality may be the best interpretation of that principle, but the idea that it exists as some Platonic ideal unsusceptible to human (i.e., non-judge) tinkering is unworkable and wrong.
Specifically, I think Kelvin and Marty need to do a better job of explaining how a process of unmistakable judicial emendation (or, as one wisecracker noted, trnasformation from government for the people to "government by four pople") is preferable to the ultimate expression of sovereignty. One would require Olympian confidence in the views both of the Framers and the current crop of Justices to justify this position, and I'm fresh out.
I can express only amazement that the newly-discovered will of a polity in which my ancestors (and most others) were excluded may, "in an appropriate lawsuit" shove aside the demands of polity for whom the franchise truly can fulfill the then-empty promises made centuries ago.
In an ill-considered stroke, these Justices have breathed life into the uncertain and shaky case for the FMA.
Most people are against higher taxes, fake equality where things aren't really equal, elimination of individual rights, elimination of property rights, apeasement of enemies, etc. So they only way the Left can get their way is to take those decisions away from the people.
Today judges want to overrule constitutions, next they'll use foreign law and international treaties to do so. Vote them down or impeach them out, whatever it takes.
After I assured him that SCOTUS did not have that power, we had a discussion on the relative merits of the two positions. I voiced an opinion substantially similar to that of Prof. Volokh and raised the additional "pragmatic" argument that it would be political suicide for a handful of judges to oppose a large majority in such a manner. This friend of mine is not a lawyer (he is an astrophysicist) and he wasn't sure if the Indian Supreme Court had ever actually used this power. It would be interesting if someone with more knowledge of other legal systems could relate episodes where foreign courts have declared constitutional amendments unconstitutional and what the political fallout was.
As I said, I agree with the normative concerns raised about such an action but I am also curious what the political ramifications might be. While history might judge the MA court correct on this issue a fight like this might end up severely weakening the Court for generations to come.
Go ahead--amend the federal and state constitutions to create this libertarian government that you want. But the only way that is going to happen is if your tyrants in black impose it. They aren't going to do that, because it would also scrap the vast majority of liberalism's totalitarian desires, such as restrictive gun control, EEO and AA, most environmental regulations, most economic regulation. And that's something that your tyrants in black won't even consider.
Quoting Me:
this amendment would arguably prevent a state legislature from enacting a gay marriage statute without first amending the Constitution. Where's the people power in that?
Quoting Rob Johnson:
Wrong. Saying that there is no constitutional right to same-sex marriage, would not prevent the legislative recognition of it.
I don't know. By saying that a state may create such a right by amending their own Constitution at least implies that no other method is acceptable.
Shouldn't it be "Who are sovereign"? Both groups are plural.
There is simply no other way to interpret it. The government of the State of Massachusetts would not be subject to the people of Massachusetts. Instead, the people of Massachusetts would be subject to the unalterable rule of the Supreme Judicial Court.
I previously suspected that the left-wing of this country no longer had any respect for democracy, and this concurrence provides proof. According to the left, democracy is an outdated concept. The people are not to be trusted with their own government; instead, the government is to be run by the enlighted souls on the Supreme Judicial Court, whose rules are not to be questioned and may not be changed. Ever.
Checks and Balances are apparently for suckers. When the left gets power, they intend to keep it. Permanantly. And the unwashed masses shall not ever be permitted to take it back.
What other rule of the Supreme Judicial Court shall be deemed unalterable by the mere people? Are there other positions that the Supreme Judicial Court believe that the people are not to be trusted with the charge of?
I have no doubt that the people of Massachusetts, for the most part, will not care about the descent to fascism. The people of Germany and Italy for the most part didn't either. But one day they'll look back and remember what it was like when the people, rather than the "enlightened" few, were actually in charge of their own government, and they'll regret that they didn't do anything to stop this.
How should judges respond to that? Maybe these judges incorrectly see the proposed Mass. Amendment as analagous.
Nothing would "fix" there problems better than that. When judges insist on making "political" decisions they should stand for election, by PARTY affiliation, just like all the other politicians in government.
Says the "Dog"
And what if the Supreme Court is occupied by monarchists? Would they have the power to reverse the Declaration of Independents if they think it not as worthwhile as the way things were before?
What I fail to understand is why Judges do not see is what appears to be the apex of power as actually the tipping point for their downfall.
This is a government of the people, by the people and for the people. For those who desire something else, there are plenty of monarchies and oligarchies in this world. Leave our polity alone.
iswhat appears to be" - still garbled, but understandable.1. What would your legal analysis say about a future ammendment to the federal constitution stripping freedom of (pick one big one - speech, religion, press)
2. What would your legal analysis say about a future ammendment to the federal constitution replacing Presidential Elections with a heredatary monarchy?
I mean, once you have made citizens unequal by amendment in any degree, doesn't that really invalidate the whole base responsibility to guarantee equality for everything? The original constitutional statement makes no provision for "equal except where otherwise noted". Wouldn't adding such an alteration be essential for future claims, e.g. Complaint: "my right to equal treatment under the law is being violated" Response: "the-marriage-only-for-straight-citizen-amendments shows that equal treatment under the law is not essential"?
(1) An amendment proposed by the house or senate. It requires a majority vote of the combined houses of the legislature on each of two consecutive sessions, followed by a majority ballot vote.
(2) A group collects enough signatures for an initiative amendment. This then requires 25% of the combined legislature to vote for it on each of two consecutive sessions, followed by a majority ballot vote.
This has been described as more difficult than many other states; feel free to correct that impression.
If a right of the people declared by the Supreme Court cannot be taken away by constitutional Amendment, this one cannot either.
Indeed, a key argument of the pro-slavery position was that the anti-slavery argument lacked rational basis -- it seemed to run against views of early evolutionists -- and was simply an effort by moral-mongers to oppress people because it didn't like their queer (peculiar) institutions and lifestyle. And it's worth remembering that, at the time, they earnestly and honestly believed this -- they honestly believed no rational reason could possibly be found. After all, they thought themselves enlightened members of the superior race, in contrast to racial savages and religious primitives.
I'm not saying whose right and who's wrong here. But should Supreme Courts have reason to be so self-confident that they believe the have no capacity for wisdom in the event of disagreement? The legacy of Dred Scott suggests, let's put it mildly, that judges are not exactly always right. Even when they pronounce fundamental rights with language that thunders on high and practically makes the national anthem leap from the pages.
Let's recap my position: I think the general constitutional right to equality that ALL mass. citizens currently enjoy should not be trumped or limited by an exception to that right (For a limited class only) that comes later in time, even though the exception itself comes via the amendment (democratic) process:
I guess my theory would have something to do with a distorted variance on the "vested rights" theory combined with some form of "heirarchy of preference" for certain classes of rights over others. Put in practice and applied to this factual scenario results in the following analysis:
The "right" of "all" massachusets citizens to "equality" is already a vested right. All citizens of Mass. already have it by virtue of their being citizens of Mass and of course by the mass. const. which gives it to them. If ALL citizens already have a vested right to be treated equally by virtue of a document (the const.) and the amendment proposed takes away this right for gay citizens only(who are by definition already included in the ALL citizens category and have the right to equal treatment), by a mechanism that proposes to do so without repealing the previously mentioned right of equality given to all citizens, how, exactly, is this accomplished? Is the aforementioned "right" to equality enjoyed by all citizens repealed in total - or just to the extent that it is repealed if you happen to be gay and want to marry, but havent already been married? And if the latter be an accurate description of the effect of the proposed amendment, how does the older provision guaranteeing(sp?) a right of equality to all citizens still survive?
Given the fact that the equality provision applies to ALL citizens at all times right now, a future cutting away of a portion of that right wouldnt simply add an amendment to the constitution, it would in effect repeal the right to equality enjoyed by ALL citizens since at least one observable group would be excluded. (please note im assuming under mass law gay citizens have a right to equal treatment, including to marry, which i dont think is in dispute in this debate, and which makes mass. unique for the argument im making). Thus, to the extent that the proposed amendment detracts from one persons right to equality or equal treatment, it detracts from all citizens' right to the same treatment under the law and this is something that I dont think the Mass. people think they are doing by proposing and (possibly) passing the current amendment.
As for the other part of my theory, i wish to offer the example the U.S. Sup Ct gives us in deciding retroactivity of new rules of const. criminal law - think Teague v. Lane, sentencing cases such as apprendi, booker, etc... I assume even non-criminal lawyers are aware of these cases. If the benefits of new const. rules asserted by the criminally accused or sentenced affect "fundamental rights" and if they meet certain criteria the benefits of the new rule of law can be bestowed on others retroactively. If the criteria are not met, it is not retroactive and applies only prospectively. The criteria are unimportant for my point. Which is, there is eventually established a hierarchy of "rights"-some deemed fundamental, others not.
The point being, applied to this situation, the constitutional right to equal treatment, and equality generally, can hardly be argued to not be a "fundamental" right enjoyed by all mass. citizens. Since it is fundamental,(at least in mass.) essential to ordered liberty or whatever phrase you wish to use, it cannot be repealed by another provision - if that provision does not also include as its object a fundamental right. That is, the present debate does not present a fundamental right v. fundamental right dispute, (which if the rights "deemed" fundamental are indeed truly fundamental, is a false dispute, since both being necessary for ordered liberty must co-exist?) The present situation presents a vested fundamental right(equality) v. an alleged voter/citizen preference concerning one aspect of the civil law relating to marriage.
Before you say, but wait, marriage is a fundamental right so it is a fundamental right(equality) v fundamental right (marriage)disupte- lemme say that the RIGHT TO marry is quite different from the RIGHT TO EXCLUDE others from marrying, especially on the grounds argued for in the present case in MASS, given what the MASS high court has already ruled on the subject.
In effect,I dont see much difference between the idea of a statute, found unconstitutional by a court, to be considered void ab initio, a nullity, and a constitutional amendment being the same if its subject matter is so repugnant to the rest of the constitutional framework. I'm not saying the present gay marriage issue presents that situation. But to the democratic purists out there, who for example may claim a state can pass an amendment reinstating slavery,(not considering federal issues at all) that would have to be enforced by the state courts - i say no way. If there be no other mechanism for legally ignoring such an amendment, i would surely hope the judiciary would illegally refuse to do so. Rights are not equal, some deserve a higher place in society than others.
If equality for all can be, in the same document, comptatible with equality for a majority, whose to say equality for all is not also compatible with equality for a few or for none at all?
It is my view that some sort of amendment is necessary just to remind the courts and their cheerleaders who's in charge. It is shocking, however, that some judges and their enablers think their power so unquestionable that they would even deem a constitutional amendment unconstitutional.
Why? So the Courts can "evolve" the Constitution to their liking instead of the people evolving it to theirs? I, for one, would like to see MORE amending of the Constitution, especially in areas where the Court has felt a need to modernize the law.
Kevin, four points:
1) I'm inclined to agree. The judges should have thought longer and harder before amending the constituion by fiat.
2) Amending the constitution should be undertaken by the procedures specified in the constitution. Your talk about seriousness and good faith is probably wise, but it isn't a legal requirement and it's ridiculous to try to pretend it is.
3) You apparently think that the proposed amendment is unserious, in bad faith, incautious, etc. That's nice for you. But the fact that you don't like it doesn't amount to a legal argument that the last-in-time rule should be discarded. Personally, I think the Volstead Act was a dumbass idea. That doesn't mean it didn't have legal effect.
4) Earlier you brought up the problem of exceptions to the 4th Amendment swallowing the rule. I need hardly point out that the 4th Amendment was, ahem, and "amendment," and if I wanted to irritate you the next time you're trying to get evidence suppressed I could decide it was unserious, made in bad faith, inadequately debated, etc., and thus by your logic ignore it altogheter. (Precedent be damned! It's not like Adams thought he was creating a right to gay marriage.)
Furthermore, the exceptions to it are almost entirely judicially created. If the people decided to make exceptions, or for that matter repeal it outright, I don't see how you could plausibly stop them without admitting that it had no actual effect to begin with.
I find it really weird how you're arguing that a right nobody thought was in any constitution 20 years ago is suddenly so deeply entrenched that we can't get rid of it even with a duly-enacted amendment. I think we could start allowing bills of attainder and granting titles of nobility with proper amendments, and those rules have been around a lot longer than gay marriage.
That's because you are thinking of it as a 'right' to gay marriage. The 'right' is to equal treatment under the law. What has changed from days gone by is we know that a homosexual sexual orientation is not a choice or a vice but an innate feature of the individual not subject to voluntary change. Since there are gay citizens, and they do naturally and religiously marry if the state offers a civil contract to married couples they should qualify too.
I often disagree with judges. But they are judges who have a job to perform, one such aspect being to ascertain the meaning of words in the constitution and applying them to the various situations that come before the court. Is it the best possible situation? I dont know.
On a deeper note, to people who disagree with my position-is a constitutional amendment ipso facto "constitutional" simply because the correct procedural process and votes were had? Is process the only thing that matters here?
Of course, it is the state courts that decide which proposed change is merely a modest amendment, and which rises to the level of revision. Alaska and California have used this distinction to nullify constitutional initiatives that attempted to enact a constitutional "victims' bill of rights," by holding that the proposed amendments were actually too far-reaching to qualify as amendments, and were in fact revisions.
Yes. The amendment clarifies the original document. To say that a portion of the constitution (ratified amendment) is unconstitutional is to defy the constitution (which sets out the process for modifying the constitution). To say that a constitutional amendment is unconstitutional is, therefore, to given effect to only that portion of the constitution and not the whole document.
The amendment controls over a previous interpretation of a different constitutional provision absent specific language in the previous provision that is in direct conflict with the new language. In that case, the court should assume that the legislature wished to repeal the earlier provision, even if the legislature did not specifically do so (otherwise, they could not decide questions of constitutional law).
Exceptions to a broad principle must be accepted as a part of constitutions or the people are stripped of their power of self-governance.
Is that sex discrimination? Well, maybe. I guess I have a right to use the women's restroom in any MA courthouse and nobody can object. I demand equal treatment!
Or maybe "treatment as equals does not mean equal treatment."
Seriously, this is a radical change in the law no matter how you slice it. Stuffing it into some noble-sounding catagory might justify the change itself, but it certainly doesn't justify the outlandishly radical and indeed tyrannical notion that the people can't reverse the rule if they want.
As for the inconsistency of eliminating civil marriage, please correct me if I am wrong, but I believe that civil (as against marriage celebrated by clergy) marriage has not always been the case in the USA. I'm sure that there are plenty of churches and clergy who would be happy to marry any couple - straight or gay - that requested it.And getting the government out of the way might allow society to come to some sort of understanding on the subject. Note that the problem isn't the churches, it's the government, because the government is PUBLIC and passes laws that affect all of us, and takes our money in taxes and spends it on things that we don't necessarily approve of. The less of all that the government does, the less squawking we'll hear about the government.
If the court interprets the amendment in any other way, the people will have to use whatever impeachment method they have to remove the jurist who is imposing his will.
I used the 4th amend. as an example to make a particular point. But it can serve a larger one. Why would anyone think the rights contained in the "bill of rights" might be more fundamental than other rights and thus more deserving of protection by the courts? Is it simply because they were the first (in time) amendments to the constitution? Or is it because the subject matter contained within them? For example, the subject matter of one amendment, say the due process clause of the 5th amend, which has been used to strike down countless laws, what it is about this particular amendment that gives it such teeth? Is it not the meaning of the words contained within it? "No person shall be deprived of life,liberty or property without due process of law." If we the people pass another amendment, which purports to take a man's life without said process, doesn't this blatant contradiciton require some explanation other than "the people followed the constitution in passing it" Am i missing something here?
Well, that's apparently what Gore thought when he didn't try to lead a military coup to take over the government in 2000 after winning the popular vote. Personally, I thought better of him for it. Now, regardless of how you voted that year, wasn't that a better result? Or is the election of a particular candidate (or enactment of a particular policy) more important than following the rules established in the Constitution, even if the Electoral College is a little weird?
Process is what defines democracy. If you don't like democracy, come out and say it.
And in all seriousness, what the *&^%$ is the alternative? Here you are obsessing over the "broad principles" of the constitution: what priciple is "broader" than "the will of the people is the law of the land"? Is it really plausible to suggest that homosexual marriage is a bigger and more important value than democracy? You're worried about "too many exceptions" to the 4th amendment (amendment!) while simultanously demanding an "exception" to the clauses which describe the proper process for enacting...amendments. Like, you know, the 4th amendment.
Your position is 1)internally contradictory and 2) (as a result) fundamentally dictatorial. It appears to be "my side has to win no matter what," neatly concealed behind a concern for "equality." Those opposed to gay marriage can probaby make equally flowery and poetic arguments in favor of their position, and dress them up in suitable rhetoric. In a democracy, we line them up and see who gets the most votes.
If you don't like that way of doing business, I suggest you lead a military coup.
I wasn't intending to debate you either - you just aren't looking at it the way the courts are and I was just pointing out the source of your confusion. This isn't about a right to 'gay marry' this is about the right of a married citizen to have license to the civil contract in support of marriage. Whether you think that all married citizens should have license, or that it is alright for the state to have restrictions that exclude all reasonable license to a citizen definitely is a topic for another day.
Regardless that is why the right is considered 'deeply entrenched' - article 106 of the Massachusetts constitution "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." Both sex and creed could be argued pretty convincingly to prohibit giving one married citizen license to a civic contract in support of that marriage and another not based solely on the gender of their spouse.
Sez you. Watch as I demolish your argument: no it wasn't.
Now, that seems (and is) stupid. But 1) there is not "good faith and serious consideration" requirement in the Constitution (maybe in one of the penumbras?), and 2) such ridiculously subjective standards cannot possibly permit us to enact laws in any reliable way. My straightforward contradiction of your claim that the 4th amendment was not enacted in good faith does not really admit a cogent rebuttal. Maybe I truly and sincerly disagree with you, what then? Is there some reason to think that judges are so much better at detecting "good faith and serious consideration" than anyone else?
But if I were to claim that it had gotten an inadequate number of votes in the Senate, or that 3/4 of the states had not ratified it, you could actually prove me wrong. Rules, not standards, are essential in lawmaking.
Look, the MA legislature has enacted any number of laws with which I disagree. I could probably go pull quotes from their debates showing that some members of the legislture are fools, or that they had bad motives, or that they didn't properly consider and address alternative arguments, or whatever. Does that mean the laws weren't properly enacted? Of course not. They got enough votes, the governer signed them, game over for me.
If we the people pass another amendment, which purports to take a man's life without said process, doesn't this blatant contradiciton require some explanation other than "the people followed the constitution in passing it"
I do not see how it possibly can require any other explanation. There are a number of direct contradictions between the original US Constitution and subsequent amendments. They became effective when the required number of states transmitted their ratifications to (I think) the Archivist of the United States. No further searching inquiry into the good faith of the state legislatures or the seriousness of the problem addressed were required. Or perhaps you can provide a cite in which SCOTUS had a holding discussing this required good faith and seriousness (doubtless over a scathing Scalia dissent)? I don't think it's ever been done.
I think you are suffering from a common problem in the US. You seem to believe that 1) what is constitutional must be good, and 2) what is good must be constitutional. Thus the notion of an (to you) unjust clause in the constitution offends you and makes you want to find an excuse to cut it out. But the constitution can enshrine stupid and unjust policies into law as easily as just and wise ones.
I think the Bill of Rights is special mostly because of its content. But that doesn't mean it can't be repealed.
This opens a very obvious can of worms. Consider the US Constitution, if interpreted this way. First, suppose the Commerce Clause gets interpreted to mean that the government can regulate the contents of any newspaper that crosses state lines. Second, note that the First Amendment, guaranteeing freedom of the press, doesn't explicitly say "newspapers are an exception to the federal government's ability to regulate commerce". So according to this reasoning, the government would be allowed to regulate newspapers.
In fact, the entire Bill of Rights would be dead, for pretty much the same reason: it's easy to interpret some other part of the Constitution in a way that violates the amendment, and then point out that the amendment doesn't explicitly overrule the earlier part, so the earlier part always applies.
In order to fix this problem you'd need to modify the rule so that the newer provision can't overturn an *old interpretation of* an old provision without explicitly saying so.
(And this has some problems for gay marriage, since interpreting constitutions to allow gay marriage is itself pretty new, though it may still be older than the proposed amendment.)
Also, what do you do if the amendment says "this amendment overrides all provisions to the contrary"?
Suppose Congress proposed, and the states ratified, a new amendment declaring slavery once again legal, and further declaring that all people with skin of a particular color were hence forth slaves to be owned by the first person to capture them.
Would such an amendment now be the law of the land? I say unequivocally yes. Could it be overturned by the courts? No. (Although one would hope to see a mass resignation of the judiciary which would not, as a matter of conscience, be able to continue upholding the constitution with such a provision in it)
How would I react? I'd be manning the barricades with a rifle in hand. And if anyone wants to join me, I've got plenty to go around.
Why? Because I think that preventing slavery is more important that protecting the democratic institutions which permit it. I'll bet most people here agree with me.
Now...is gay marriage worth starting a revolution over? Is it worth undermining a highly successful system--the most successful in the world, by far--for this particular issue? Massachusetts has been a continuous, although highly imperfect, democracy for nearly 400 years. Would you really be willing to tear up that record and fight in the streets of Boston for gay marriage? For free speech, maybe. Because soldiers were quartered in your home in peacetime, knocking up your teenaged daughters: probably. Gay marriage: Really?
Because deciding that certain constitutional amendments are "unconstitutional" because you don't like them, or consider them "unserious," is merely a less bloody way of staging a coup. But it's a much more serious and shocking step than simply rumaging around in penumbras to invalidate a statute. Losers always console themselves that if they don't like what a court says, they can amend the constitution. Take that away and the choice is submission to our robed masters or violence. I find neither appealing.
I know I'm being a tad melodramatic. But the US was born when its people were taxed without any representatives in parliament. They would have submitted to taxation if they could have sent a couple of guys who would have gotten outvoted, but their "betters" told them to shut up and get with the program. It would appear that is the course of action being advocated here.
I, for my part, think democratic self-governance is vastly more important than gay marriage. I don't mind if anyone disagrees on that point, but I think you need to be clear about the implications demanding only "serious, good faith" amendments.
So your point is that...if gay people did not exist, we wouldn't be fighting over gay marriage? Well, true, true.
Bob, as could the opposite point of view, which is why I think Carpenter is right about this issue...it is a gut call. At the end of the day, I think people simply want their guts to matter. When judges get involved as they have in MA it can only stir the pot, transforming gay marriage into a much broader issue than gay-marriage supporters had ever intended it to be. I can't imagine that transforming gay marriage (or more broadly, gay rights) into a lightning rod for animus directed against the judiciary is a productive means of acquiring the rights you want. All it's going to do is piss people off, people who might otherwise support your position.
Gay marriage, if it ever comes about, must come from the people, from the concept of popular sovereignty, or else it will be a hollow 'right' indeed, one apt to be lost as fraudulently as it was gotten.
Dale preaches patience. This is the truth, though a hard one to accept for many folks.
I suppose one cure would be a holding by SCOTUS, after a federal lawsuit, that an inability to amend the existing MA constitution means that MA no longer has a republican form of government. Sure that is unlikely, as Prof. Volokh indicates, but what does this clause mean if not that the people (acting alone or through their elected representatives) must have the final say over changes to the constitution? Whatever the meaning of "republican," surely it must exclude a government in which the very document that vests power in certain judges could not be changed without the agreement of those judges.
There is a federal parallel in the U.S. Constitution (Art. V, Clause 3) prohibiting an amendment from depriving a state of its equal sufferage in the senate without that state's consent. Since that will never happen (the consent, that is), the only way around this provision would be for the other states to adopt a new constitution without this provision. Presumably, though, if you had the votes in Congress and in the state legislatures to amend the Constitution to take away one of Wyoming's two senate seats, you would also have the votes to adopt an identical constitution that did not require Wyoming's consent to do so. But query whether the adoption of a new constitution would itself be an amendment requiring Wyoming's consent?
Is is not the case that all of the gays initiated the idea. There were 7 named plaintiffs, Goodridge et al, which is just over one millionth (0.0001%) of the population. So what?
Strategically, I hope the initiative makes it to the ballot, because after a number of years of having gay marriage in the Commonwealth and the sky not falling down, I suspect the vast majority will choose to allow the current status quo to remain, rather than do something mean-spirited.
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I understand that the US Constitution has fundamental rights, largely those that are incorporated under the 14th Amendment to the states, and that it has a penumbra that's got even more rights, and there is a notion that fundamental rights can't be amended away. I'm not aware of the same lines of reasoning for Massachusetts. The SJC can't (and isn't trying to) have it both ways: Goodridge was putatively decided on straight "this is what the document says" grounds, not "this is what it ought to say", and if the document gets properly amended, so be it,
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I've never understood the "can't reverse a judicial decision" argument, and that it only applies to particular decisions, and not the underlying law, makes the most sense. Every constitutional amendment I am sure comes about after something was tested in some court and found by the people to be unsatisfactory.
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jrose is unhappy that it is so easy to amend the Massachusetts constitution (25% of legislature [in two sessions] and a simple majority of the people.) So amend it! :-)
It just isn't as revered and august a document as US Constitution. Especially as we've got the US Bill of Rights well protecting most fundamental rights, I'm not worried that the Massachusetts constitution gives this populist, democratic check and balance over the legislature. The legislature has shown a propensity to disagree with the expressed wishes of the people, such as by reinstating mandatory seatbelts after they were repealed by proposition.
Nothing says that you can't amend the prohibition on amendments depriving states of equal suffrage. Once you do that, a second amendment can do just that.
(Way off topic, some proposals to make the US Senate closer to equal votes per person have reduced each state to one Senator, with the other 50 Senators elected at large, to comply with the restriction. Of course that hasn't been tested.)
Umm, actually I think the Constitution does exactly that. It's the only remaining exception to what can be changed by constitutional amendment. Equal suffrage in the Senate can be eliminated ONLY with that state's "consent." So the regular process of ratification is insufficient. It can be changed, yes, but only with the each state's consent. And how likely is that?
Admittedly, democracy, whether representative or direct, has its place in this view. It's good, for example, for deciding whether a traffic light is needed at the corner of Elm and Vine, or to determine whether a new highway is necessary and, if so, whether it should be paid for by a bond issue or a tax increase. But the idea that issues that most people consider important and fundamental should be decided by the votes of most people is either given short shrift or, if addressed, regarded as a horrifying anachronism.
Ordinary rules of construction require that the specific controls over the general. Applying that principle to this situation, one must conclude that, despite a general requirement of equal protection, there is a specific exception for gay marriage.
The public policy implications of that are not my point. My point is that the reconcilation of the two provisions by legal standards is not difficult. Any law student ought to be able to figure it out. Anyone who professes to be unable to figure it out is most likely confusing his policy preferences with the canons of construction.
Just to take a few examples from the more familiar to us federal Constitution ... The original Constitution could have been (and, despite Madison's arguments to the contrary, likely would have been) interpreted to let the Congress exercise its enumerated powers in ways that interfered with speech, or involved unreasonable searches; the Bill of Rights was inconsistent with that old structure, and superseded it. ... The last-in-time-prevails rule is the only proper rule here.
I would note that the amendments to the federal Constitution are not creatures of initiative. State constitutions that provide for amendment by initiative generally provide all sorts of limitations on the form and substance of such amendments. (E.g., an amendment can't address multiple issues, an amendement can't interfere with appropriation of revenues, etc.) It doesn't strike me as out of the question for a state supreme court to hold that amendments adopted by initiative will not be deemed to supersede preexisting provisions unless they specifically so state.
To step back a little bit from the game of devil's advocate I'm playing, I probably agree with our host that Justices Greaney and Ireland are wrong on the substance of this issue and that a Massachusetts court would have to enforce the amendment if it were adopted (assuming arguendo that there were no intervening change in federal law regarding the matters addressed in the amendment). I suspect that Justices Greaney and Ireland recognize that too. What I think they are doing is signalling to would-be sponsors of rights-stripping initiatives like this one that they are taking a risk if they frame their initiative language in a way that does not make clear that the proposed initiative would take certain rights away from citizens.
Chesler's suggestion of amending the constitution to correct the problem is well taken, but too late for this case.
If you are under 21, you don't have the same rights as someone 21 or over: handgun purchase; alcohol purchase.
If you are a convicted felon, you lose a number of rights: voting; certain jobs are off limits; you may not own a gun.
If a court has found that you are mentally ill or incompetent, you lose some rights: gun ownership (in many states); sometimes even your freedom, if your illness or incapacity is severe enough.
This notion you have of equal rights sounds all very good, but it has never truly applied. There are all sorts of restrictions on marriage: you can't marry our sister; you can't marry your parents; you can't marry multiple people at once; you can't marry an animal.
Now, I know that you want to believe that being a homosexual doesn't justify the government treating you special. But don't kid yourself that your doctrine of equal rights under the law really means that everyone gets treated equally, or is required to do so. The courts have created all these different levels of scrutiny (strict scrutiny, intermediate scrutiny, etc.) because they were looking for a basis to overturn democracy when it suited them, and because the segregationists, for a long time, had the money, and therefore the most clever lawyers, since law school seems to teach lawyers that there is only one God, and that is Money.
This isn't the first time this has happened--and again, for the benefit of homosexuals. The voters of Colorado adopted, by initiative, a constitutional amendment that prohibited local governments from adopting anti-discrimination ordinances with respect to sexual orientation. In Romer v. Evans, the U.S. Supreme Court decided that there was no rational basis for such an amendment. The U.S. Supreme Court ruled that the voters may not amend their own state constitution to limit governmental power.
Homosexuality, and the continual need that homosexuals have for governmental approval (not just being left alone) seems to be incompatible with a republican form of government. I presume this is why lawyers everywhere have taken homosexuality on as their cause.
The Romer case is a model of Kennedy's bizarre reasoning and impenetrable writing. But note that it was a little bit better than the proposed overruling of MA voters by a MA court. In principle, the SCOTUS was speaking for the nation and the US Constitution there. Maybe not much comfort for CO voters, but at least a little bit of comfort for me.
Umm, actually I think the Constitution does exactly that. It's the only remaining exception to what can be changed by constitutional amendment.
No, the exception says you can't amend to deprive states of equal suffrage.
Proposed Amendment XXVIII:
The final clause of the Fifth Article of this Constitution is amended by substitution to read "and any state, without its consent, may be deprived of its equal suffrage in the Senate".
(or simply "The final 17 words of the Fifth Article of this Constitution are deleted.")
After the 28th Amendment is ratified, comes
Proposed Amendment XXIX:
"The Third Section of the First Article of this Constitution is amended by adding after the words 'from each state' the words 'that does not restrict the ability of two individuals to marry on the basis of the sameness of their respective sexes and one from any other state'."
(Or any other nonsense that you wish.)
So your point is that...if gay people did not exist, we wouldn't be fighting over gay marriage? Well, true, true.
It is not the case that all of the gays initiated the idea. There were 7 named plaintiffs, Goodridge et al, which is just over one millionth (0.0001%) of the population. So what?
Well, with regard to the first quote, Duh! With regard to the second quote, Goodridge et al were attempting (successfully) to overturn (or change) MA law for the nominal benefit of the 4% of the population which is homosexual, whether they wanted the change or not, because that's how the system works. One doesn't go to the SJC of Massachusetts and ask for a special dispensation to marry your same-sex partner.
If one were to attempt such a thing, one would go to the legislature with a special bill. Oh, granted, good luck, Charley, but that's the way to go for individual stuff. We do it all the time here in MA, particularly with towns wanting to make their public utilities and golf courses and such into indepedent Enterprise Funds to get them onto their own feet and off the tax levy.
Clayton's comment that "Homosexuality, and the continual need that homosexuals have for governmental approval (not just being left alone) seems to be incompatible with a republican form of government." begs some further comment from him or others: Are you saying that homosexuality per se is incompatible with a republican form of government? I don't see why this should be the case. Or is your point that "the continual need that homosexuals have for governmental approval" is incompatible with republican governance? Which brings up another question: In view of your comments about various restictions in law on marriage and other freedoms, thus making them non-absolute freedoms, why do homosexuals (or at least the "Gay Rights" lobby) feel that they need governmental approval (as against just being left alone)? Inquiring minds wanna know.
Homosexuals have the very same right to get a marriage license as any other person in the state. Any homosexual male is free to get a license to marry a women just like any heterosexual male. He can declare is homosexuality to the world while at the counter getting the license and his license to marry a women will not be denied.
Says the "Dog"
Substantively, this was already dealt with in Loving, and was not at issue in Goodridge. The question was never "Do homosexuals have a right to marry?", it was always "Do homosexuals have a right to marry the one unmarried unconsanguinous adult willing human of their choice, unbarred by the fact that said human is of the same sex?" And while Goodridge could have been decided on sex discrimination grounds, parallel to Loving, it wasn't; rather it was decided on the basis that marrying the person of your choice is so fundamental that this restriction must meet strict scrutiny and it doesn't. I would be very curious what happens when a brother and sister try to get married, to see how the SJC gyrates, or when two sisters try to get married, pointing out that they are not so prohibited by Chapter 207 section 2.
True, constitutional amendments are supposed to change the status quo, but in order to do what Mass wants to do, under your theory, wouldn't they have to pass an amendment repealing their equal protection clause? that's what was done with the federal amendments you referenced. they reversed prior amendments. what Mass seeks to do is substraction by addition, not repeal.
Goodridge et al were attempting (successfully) to overturn (or change) MA law for the nominal benefit of the 4% of the population which is homosexual, whether they wanted the change or not, because that's how the system works.
And again, so what?
Is there some threshold below which it doesn't matter if that fraction of the population is denied what to them is a fundamental right? That same 4% is pretty much the percentage of Americans who are members of a religion which is not Christian -- what will you do with that 4%?
And again, this is why those who support same-sex marriage should favor this vote. Even if it does not pass, the minority in favor of the measure will exceed the most generous estimate of the fraction of the population that is gay.
Well, the short answer to this question is: every provision in the constitution may be altered, modified, removed, sliced, diced, and cubed to the voters' content, by a subsequent amendment. If the voters (or whoever is authorized to adopt an amendment) want to remove the "equality" provision altogether, they may do so. The slipperiness of the slope depends on the extent to which people want to amend the constitution, and no judge should have the power to prevent a lawfully-adopted amendment because he thinks it is not wise. And any judge who tries to do so should be impeached immediately, in order to restor constitutional balance.
I never responded to the rank attacks that im being fascist...let me be clear i support democracy. Honest- What i dont support is using the amendment process to push an initiative - written specifically for one issue - that could affect other previously accepted rights. This is, I think, part of Josh's point. There not simply adding an amendment, they are simulataneously substracting from another. I think most MASS voters want to retain the former, not diminish it. I dont know if the latter idea is even considered amongst the citizens. That's the problem I have.
But since I am now the resident anti-democracy fascist - lemmme ask another hypothetical: If the U.S. voters repealed all the bill of rights, as many like you have proclaimed we have the right to do - and amended the const. to allow a dictator - unelected - to both make and enforce the laws (repealed the legislature)and America became the dictatorial capital of the world, surpassing N. Korea or what other example you want to think of - would this hypothetical anti-America be "better" than a real N.Korea like dictatorship...simply because we voted for it as opposed to it being forced upon us? Aren't they both, in the end, horrible examples of a country, even though one got there the "democratic" way? Just a thought experiment, dont expect a serious response.
No. Probably worse, actually. It's hard to respect a people that would vote for something like that; they must be complete idiots. But it would be foolish to say that they choice voters made was "illegal." Unless, I guess, we're talking about "international law," in which case electing George W. Bush appears to have been a gross violation of the human rights of endangered cyanobacteria.
arguments could be made for other exceptions once the gate is open
Well, sure. And those arguments would presumably have to be made to the voters in the form of a fresh constitutional amendment, no? You seem to be confusing judically created rules--which lend themselves to novel, unintended extensions, e.g. condoms for married couples --> homosexual sodomy is "implicit in the concept of ordered liberty"--and narrow exceptions written into the law.
I can se no justification for a court taking "marriage is between a man and a women" and deciding: aw, hell, "equality" has one exception, why don't we just add another one start denying gay people the right to vote? That's digging harder into the penumbras than even Blackmun would. If you think the amendment is badly drafted and overbroad, by all means argue that, but don't claim that it is somehow illegal to put badly drafted clauses into the constitution.
Maybe the voters might decide to ban gay voting--and that would be very, very bad--so I can see how you could argue that people must vote against this measure to avoid taking a step down the slope. But I don't see how you can claim that this step cannot legally be taken just because you think it might lead to a parade of horribles. Maybe the voters want a parade of horribles (and I'm not referring to the annual "pride" parade, here).
And I certainly never called you a fascist, but I don't see how you can claim to be anything but anti-democracy (or at least only selectively commited to democracy) if you think that judges rather than the electorate should get the last word.
Clayton, all of your examples are regulation, not proscriptions. An underage citizen will eventually be of age, its just a time delay.
A felon infringed on other rights and had their's regulated as a result.
The mentally ill do have equal rights, especially in the area of marriage.
As to your marriage examples they are again regulation vs proscription. Although you can't marry a close relative you still have a pool of reasonable pontential qualifying cosigners of billions - if you are heterosexual. You can't license more than one civil contact or have more than 2 in the contract but you still are allowed to license the contract with someone you would want to 'build a life with'. And of course all the animals we currently know of are not contractable entities - when the Vulcans show up the contractability of other species and cross species marriages will be something we have to deal with, just not today.
Only gay citizens are effectively given a legally recognizable potential spouse pool of zero - proscription, not regulation of a fundamental right.
And of course the government can not 'approve' of anything - its a mental tool, only people 'approve'. All the government is supposed to do is regulate how people's rights interact. Just because the government motorcycle license allows you to ride a motorcycle on wet pavement or gravel roads doesn't mean the government 'approves' of it - its just possible.
All gay people want is reasonable equal license to the civil contract for their marriages just as heterosexuals have. Its an equal access issue.
And as stated before, the reasonable concern of the judge is that the proposed amendment is in conflict with the guarantee of equal treatment which will neither be denied or abridged. Once you say that the government can treat law-abiding citizen's fundamental rights differently you have potentially just given a pass to requiring equality at all to any law abiding citizens.
This could be avoided by purposely altering the equality promise to allow exceptions. I can see why those who want to promote proscriptive inequality would like to avoid such an obvious proclamation of their doctrine but its really the only way they can do so and guarantee equal treatment under other condtions in the future.
In the 1970's the Supreme Judicial Court held that the death penalty was unconstitutional under the state constitution.
Thereafter a constitutional amendment was passed specifically providing that the death penalty was not prohibited by the constitution.
The next time a death penalty case came up he court ruled that such a penalty could not be fairly applied.
So the SJC will ignore constitutional amendments.
Umm, actually I think the Constitution does exactly that. It's the only remaining exception to what can be changed by constitutional amendment.
No, the exception says you can't amend to deprive states of equal suffrage.
Proposed Amendment XXVIII:
The final clause of the Fifth Article of this Constitution is amended by substitution to read "and any state, without its consent, may be deprived of its equal suffrage in the Senate".
(or simply "The final 17 words of the Fifth Article of this Constitution are deleted.")"
Nonsense. You can't get around the prohibition by amending it first.
If we approve homosexual marriage, we definitely open the door for two brothers or two sisters to marry (each other). The laws on consanguinity would not apply since in each case, impregnation of one partner by the other is not possible (at least with current medical technology). On the other hand, a brother-sister marriage certainly presents the possibility of impregnation, and while I don't know whether the original reason for the consanguinity law was based on moral outrage or genetics, today, we are sufficiently aware of the dangers of inbreeding to keep that ban in force.
The other concern, which may or may not be valid, is that allowing gay marriage will open the door for polygamy or polyamory, not on the merits of the gay marriage law, but because of the taboo-breaking legal precedent.
The problem is you think of this as 'gay marriage' when it it just acknowledging that all citizens should have some reasonable way to license the existing civil contract of marriage. Heterosexuals of all flavors all ready do whether they are monogamous or polyamorous in desire, homosexuals do not in any aspect. Citizens are already allowed to marry men and women, the only change will be allowing citizens of either gender to do so. All citizens will still be proscribed from licensing with close relatives, all citizens will still be proscribed by the very nature of the contract from having more than 2 in an exclusive contract. Once all citizens are given reasonable access to the existing civil contract the discussion is really over, polygamy is about creation of a new contract that can support multiple copies or more members - a totally new topic.
If marriage is a fundamental right, infringements against it must be narrowly tailored as well as serving a compelling interest. This would require the state to allow brother-sister marriages to those who cannot reproduce, at least if we accept that revulsion is an insufficient state interest.
Ask 100 Americans why they think we outlaw incestuous marriage and I'd be suprised if a single person states this is as a reason.
I really get tired of this. Whatever the merits of gay marriage, let us not pretend that it's not a fundamental change in marriage.
Ask 100 Americans to explain the genetic implications of consanguinous couples, and I'd be surprised if a single person gave a detailed and scientifically accurate answer. Well, maybe I wouldn't be, but you get the idea. Most people have no idea what the actual risks are. And BvB is correct, couples with much, much higher risks of passing on debilitating genetic conditions are perfectly free to marry and reproduce. And I think he's also accurately described the legally justifiable reason for banning such marriages, as opposed to what 100 people on the street would probably say: "That's gross."
Be as tired as you want Hans, its still the truth. The ONLY point under contention is equal access to the civil contract of marriage, not marriage itself. People naturally marry, people religiously marry, both gay and straight. The ONLY aspect of marriage that is withheld is license of the civil contract by gay citizens.
Whether you like it or not the 'institution of marriage' already includes gay couples and 'traditional' marriage is a thing of the past - the question is when will gay married couples have equal access to the civil contract licensed to other married couples?
And no, the state has a right to regulate even fundamental rights, what it can't do is effectively proscribe a citizen any reasonable level of exercising it. This is not a case of 'everyone can do anything they want' as painted by the anti-marriage equality crowd - this is an 'every citizen should have some reasonable avenue to exercise this right' issue. All variants of heterosexuals already have access whether they might also prefer to marry their sibling, have multiple partners or whatever. Only citizens that can only be reasonably expected to marry those of the same gender are excluded from any avenue of exercising their right and have equal state support of this fundamental right. That's the salient issue.
You may object that marriage is really under assault, and you may think that there is a real crisis that just happened to reach its climax at that critical juncture...but i would disagree. Can i prove Rove's motives. No, of course not. But i can suspect. And i realize you didnt call me fascist, but the F word was thrown out by others. I used one post to respond to more than one directed at me.
For the record, I am not gay, but i think the whole gay marriage amendment issue is retarded. I fail to see how granting same sex couples the legal incidents of marriage harms the non-gay, but it is precisely the non-gay that are pushing amendments (to reign the judiciary in?) that dont affect them personally. Tyranny of the majority? perhaps. Which is an acceptable part of a democracy. But more importantly, i enjoy dialogue and will often play devils advocate just to see the response from those who have a view and support it. I know my words on here, or yours, or even the esteemed blogs authors will likely not affect the outcome in Mass either way. At least the commentary here is generally supported with proper legal analysis, or scientific studies, or whatever depending on the topic. Great blog made better by its loyal readers/commenters, who often dont always agree with each other. That is the point of dialogue is it not? Have a great day. I may lurk now and again when a crim law issues pops up, there more suitable to my interests.