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Governor Baldacci’s Journey

May 6th, 2009 No comments

Here’s how marriage equality came to Maine:

Neighboring states began to recognize marriage equality. In two cases (Massachusetts and Connecticut), the recognition followed a court order. But in the other (Vermont), the legislature, after an experiment with civil unions, engaged in a lengthy and mostly respectful debate about whether such unions fully honor the loving relationships of same-sex couples. Concluding that only full marriage equality can achieve this compassionate end, the legislators last month overrode the governor’s veto, making marriage equality reality.

John Baldacci, a reasonable, centrist governor in the hard-Yankee state of Maine reflected on all of this, and on the impassioned testimony on both sides of this emotionally charged issue. He candidly stated that the goings-on in Vermont had made him reconsider his position, and that he’d moved from “no” on the issue, to undecided — in other words, persuadable. As was true about Iowa State Senator Mike Gronstal, Baldacci showed himself to be interested and fair-minded. It turns out he’s also accessible in a way that may pull you up short.

He read all emails sent to him on both sides of the issue, including a rather nasty one in favor of marriage equality. He then picked up the phone and called the sender of that email. Instead of rising to the level of anger invited by the email, he took the pot off the stove.

Here are his remarkable comments to this constituent:

“I was extremely impressed by the arguments for both sides, but especially by the proponents.

They were very respectful- I liked that they turned their backs when they disagreed.

I was truly impressed by the people who spoke for the bill.

I was opposed to this for a long time, but people evolve, people change as time goes by.”

This isn’t abortion, or religion, or any of the many issues on which a solid majority of the electorate is unlikely to change their opinions. The Governor, and millions of practical and empathetic Americans like him, are coming to see that allowing same-sex couples to marry isn’t destructive, or scary — it’s affirming and wonderful. The rock is almost at the top of the hill.

Categories: Gay Rights, Marriage Equality Tags: , , , ,

Maine Becomes Fifth State to Recognize Marriage Equality

May 6th, 2009 No comments

The argument that marriage equality is being foisted on the people by the anti-democratic judiciary now has two “exhibits” for the other side: Maine has just joined Vermont in the sudden surge of marriage equality victories. Governor John Baldacci signed the measure just hours after it received final approval by the State Legislature. The story just came across the wire services, and I will have much more to say, soon.

Categories: Gay Rights, Marriage Equality Tags: , , , ,

Vermont Follows Iowa! (But in a Very Different Way)

April 7th, 2009 2 comments

I returned from class to learn that the Vermont legislature has just overridden Governor Douglas’s veto of marriage equality legislation. 100 votes in the House were needed for the override; exactly 100 were obtained. (The Senate’s override was by an overwhelming majority.) Now, we have the first state in which marriage for gay couples has been achieved by a legislature acting without being required or pressured to do so by a court. In this post, I offer some background and a few thoughts about what this might mean.

First I have to say that I was stunned. With all attention, including my own, focused on Iowa, I didn’t realize that the governor’s veto had already taken place (the Vermont house voted on the bill just last Friday, the same day as the decision in Iowa), much less that the override votes were taking place. Nor did I realize that there was a good chance of overriding the veto: When the bill passed, it did so with only 95 votes. Somehow supporters found the five additional votes they needed.

So Vermont now becomes the fifth state to recognize marriage equality.1  But it was the first to move very substantially in that direction. In 1999, the Vermont Supreme Court decided Baker v. State, the first sort-of-successful marriage equality case. The five justices were unanimous that same-sex couples were entitled to the benefits of marriage, but stopped just short of requiring the legislature to grant them the right to marry.2 Instead, they held, the law-makers might choose to provide access to some parallel institution conferring all or substantially all of the benefits of marriage — but not the label. Thus was the civil union born.

In an earlier post, I wrote tongue-in-cheekily about the significance attached to this label, wondering whether same-sex couples might be entitled to “mariage” — with one “r” — since the word “marriage” seemed to be the problem. But from a purely political perspective, the court’s decision turned out to be brilliant: The civil union didn’t generate the kind of oppositional heat that “marriage” would have, gave straight Vermont citizens some time to settle into the truth that same-sex couples’ unions didn’t threaten theirs, and eventually led to a commission report finding that civil unions weren’t leading to the full equality that the Vermont court had hoped for.  Ten years later, marriage equality is achieved.

The significance of equality through legislative means can’t be emphasized enough. One of the most effective (though wrong) criticisms of the push for marriage equality is that it’s been achieved through the courts: “activist judges,” “fascists in robes,” and “philosopher kings” have pushed this on the public, according to the opposition. What will they say now?

Some of the most extreme complain that the legislature isn’t democratic either, conveniently overlooking the whole notion of representative democracy. Traction, this will  have none. It’s particularly unconvincing in a small state like Vermont, where the state legislators have a great deal of contact with their constituents. Here is the link to this morning’s House vote in Vermont and the few comment that preceded it. Note the respect that both sides urge; one opponent says that, even if he loses, he will, as a Justice of the Peace, respect the law and perform same-sex marriages. Here are legislators who are very respectful and close to the voters.

The California legislature twice tried to enact marriage equality, only to have the governor veto both bills. So Vermont becomes the first state to grant basic equality to gay and lesbian couples; again, without judicial compulsion of any kind. What might it mean? I’m hesitant to say too much so soon, but let me try this: The Vermont move could well energize other somewhat progressive state legislatures to follow suit: the other New England states (especially New Hampshire and Maine); New Jersey; and New York are the likeliest. Once that happens, I think the push for marriage equality in California becomes even stronger; Prop 8 could be repealed as soon as next year, even if, as expected, the California Supreme Court allows it to stand.

And apres California, le deluge.

  1. I’m including California among the five, because equality was recognized for a time. It’s currently on hold pending the Supreme Court’s decision on Prop 8.
  2. One justice wrote that the couples were entitled to full marriage equality.

A Few Uninformed Guys on the Corner of Main and Elm

March 29th, 2009 1 comment

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.

  1. That isn’t to say, of course, that actual judges are reliable guarantors of equality. As a striking and distressing example, consider the flap over Justice Scalia that Barney Frank kicked off by calling the conservative justice a homophobe. The L.A. Times has a solid take on the whole thing.