It’s only a matter of a year or two until some state uses the legislative process to create marriage equality. Vermont, New Hampshire or Maine: any of these would be a good guess, but the states’ governors have all stated (expressly or implicitly) that they would veto such legislation. (There may or may not be the votes in Vermont to override such a veto). The other two real possibilities are New York and New Jersey; New York already recognizes same-sex marriages from other states, while New Jersey has: (1) a civil union law; (2) a governor who recently stated he would sign a marriage equality bill if it came before him; and (3) a reasonably progressive legislature.
When that day comes, though, don’t expect the anti-equality forces to admit that “democracy has prevailed” over a judiciary consisting of those Professor Lino Graglia of University of Texas Law School has angrily called “philosopher kings.” By now it is comically apparent that the anti-marriage gang favors — anyone who’s with them, intellectual honesty be damned. My perceptive colleague Robert Justin Lipkin made this point eloquently a few years ago, and subsequent events have proven him more correct that he probably could have imagined.
Leading the Inconsistency Brigade is the all-over-the-place Maggie Gallagher, whose tactics I discussed in an earlier post. Now, having excoriated the Massachusetts Supreme Judicial Court and the California Supreme Court for requiring marriage equality (the Mass court was wrong for applying a “rational basis” standard and finding that there wasn’t one for excluding same-sex couples from marriage; the Cal court was wrong for applying a higher level of scrutiny — what’s a poor court to do?), she finds fault with the legislative process in the New England States:
“[Marriage equality] is more a creature of special interest politics and legislative dealmaking. These are small states which can be influenced by fairly large amounts of outside money coming in. And it’s very hard for regular people to feel that they can have a voice on this issue in these states.”
Oh, the problem isn’t just the courts — it’s these darn small states! Hmm….wasn’t the tremendous influx of $$$ in California monumentally important (to both sides) in the Prop 8 fight? You know, the not-so-small California (home to about one in every eight Americans). And I would have thought that people had more access to their government in the small states, what with the sort of “town hall” meeting style so closely associated with Vermont that it was popularized in Newhart.
It’s just too bad that the constitutions in these fly-speck states are so darn hard to amend, fumes Gallagher. She conveniently overlooks the fact that, when voters in Connecticut recently had a chance to call a constitutional convention that could have negate that state supreme court’s very recent marriage equality decision, they passed. Moreover, if recent poll numbers from Vermont (good summary and analysis at this site) are to be believed, the “direct democracy” that Gallagher apparently favors won’t do the anti-equality forces any good in that state, anyway. Vermonters favor marriage equality.
This is all about tactics, then. Am I any more principled? Here’s my position: I think that matters of civil rights — especially where minorities are concerned — are for courts, and indeed go a long way towards justifying courts. Equality and fundamental rights go hand-in-hand in the case of marriage, because it’s fair to require the majority to hold themselves to the same rules and definitions of what counts as “fundamental” as everyone else; simply put, if marriage is a fundamental right, equality demands that it be offered to all consenting adult couples, neutrally. (And if that’s too much to bear, the state shouldn’t be in the marriage business.)
Politically, of course, it’s better if marriage equality comes from legislatures; courts, precisely because of their anti-majoritarian role within our constitutional scheme, are easily attacked as robed dictators. But courts are the check that’s needed,1 as anti-equality forces themselves usually recognize in other contexts, such as interracial marriage. [Gallagher: “The ban on interracial marriage was about keeping people apart; ‘this’ (opposing marriage equality) is about getting people together.” Nice sound bite, but inane. Which people, exactly, are going to be brought together by banning same-sex couples from marrying?)]
As Lipkin has put it:
“[T]hose opposing same-sex marriage should choose, once and for all, which branch of government is the proper forum for deciding this issue, or embrace both and cease carping at the courts when they enter the controversy. What they should avoid, at all costs, is adjusting their constitutional stories for result-driven purposes. Elementary decency in public debate demands as much.”
Or we could let the issue be decided by a few uninformed guys on the corner of Main and Elm.