Gay Marriage and Democracy

On January 3rd, the Massachusetts Legislature — convened in a joint session of its House and Senate known as a Constitutional Convention — voted 62 to 134 to place an amendment banning gay marriage on the state ballot in 2008. If the measure once again gains the support of 25% (50 members) of the legislature in the next legislative session, it will have cleared the last hurdle before voters have their say on the matter.

Gay marriage advocates in Massachusetts, where the Supreme Judicial Court ruled that the state Constitution mandated gay marriage in 2003, immediately cried foul. “There is not a gay person in this state who is not living in terror about the possibility that this will pass, and the negative ramifications for us, which are huge for our kids and our families,” Arline Isaacson, chair of the Massachusetts Gay & Lesbian Political Alliance said. As one of those people Isaacson presumes to speak for, I share her “terror.” But I also have serious problems with the undemocratic means by which gay marriage advocates have attempted to achieve their worthy goal.

The legislature’s decision to vote on whether or not to place the amendment on the ballot was a break with tradition. At an earlier Constitutional Convention on November 9th, the legislative leadership used a procedural tactic — voting to adjourn before taking a substantive vote on the matter — to deny the amendment a fair hearing. It was only after anti-gay marriage advocates, joined by then-Governor and presumed presidential candidate Mitt Romney, brought a lawsuit to the state’s highest court that the tables began to turn.

The Massachusetts Constitution is very clear about how citizen-initiated ballot amendments ought to be handled. The Supreme Judicial Court — which, it is important to remember, is the same Court that ruled gays have a Constitutional right to marry — unanimously decided in a December 27th decision, that the legislature’s obligation to vote on the merits of an initiative petition which garnered the requisite number of signatures is “beyond serious debate.” Because gay advocates know they do not have the law on their side, they have turned to legally dubious ways of scuttling the amendment.

Isaacson admitted as such when, before last month’s vote, she said, “We know that if the Legislature votes on the amendment, we will lose this year and next year, and it will go to the ballot, where it will likely pass.” Isaacson’s alarmism is inaccurate; there is little chance that the amendment would pass because a steadily increasing majority of voters here support legal recognition of gay marriage. But more telling is Isaacson’s strategic calculus. She openly admits that gay marriage activists knew they did not have enough votes to block the amendment on its merits and so they advocated procedural tricks like adjournment — deemed unconstitutional by the state’s highest court — to get their way.

One of the strongest proponents of killing the marriage amendment at any cost is Democratic State Representative Byron Rushing. He told the Associated Press last month that, “People do not have the rights that they think they have. What they have is a process.” Mr. Rushing’s disrespect for the voters of Massachusetts aside, he is correct about his second assertion. The citizens do have a process, but it is a process that he and his legislative colleagues have repeatedly abused, to the point where former Governor Mitt Romney joined the successful lawsuit against the legislature.

The State Supreme Court’s admitted powerlessness to deal with the legislature’s intransigence demonstrates the fragility of republican government. The blunt declaration of one Justice that, “Beyond resorting to aspirational language that relies on the good faith of elected representatives, there is no presently articulated judicial remedy for the legislature’s indifference to, or defiance of, its constitutional duties,” indicates that honesty is the most important quality we must expect of elected officials. The rule of law requires so much more than a mere piece of paper (which, at the end of the day, a Constitution is) to operate; the ingrained respect for the Constitution, sowed over centuries of democratic government, is what separates this country from the countless dictatorships which also have Constitutions dripping with the flowery language of rights and responsibilities. Ultimately, it was the shame of operating in open violation of the state’s most sacred legal document that gave legislative leaders second thoughts about the roughshod way that they had dealt with the marriage amendment.

Newly-elected Democratic Governor Deval Patrick said last month that, “Never in the long history of our model constitution have we used the initiative petition to restrict freedom.” In the highly unlikely event that the marriage amendment does make the ballot and Massachusetts voters repeal gay marriage, it would indeed be a shame. But democracy is a knife that cuts both ways; sometimes you do not always get what you want. Supporting gay marriage and the rule of law, as I do, is not mutually exclusive. We ought to give supporters of gay marriage the benefit of the doubt that they support the democratic process as well. Unfortunately, their strategy and statements suggest otherwise.

James Kirchick is Assistant to the Editor-in-Chief of The New Republic.

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