The state Legislature of Massachusetts is avoiding a divisive vote through every loophole they can find. In doing so they are hurting the democratic process in their state and in their country. Proponents of homosexual marriage rights have been relying on tactics like this in many parts of the country to allow their goals to be court ordered and deny the people in their districts the right to decide, much to their shame, in my opinion. I cannot accept that it would ever be better to bypass the democratic process to achieve the realization of a goal unless, perhaps, that bypass saves lives. I assume that they believe that once their desired interpretations of laws are on the books for awhile that people will just accept them. This seems unlikely to me. In the event that the general public does not simply start accepting these new rules, having them imposed without due democratic process only hurts your cause in the long run. This is a short-sighted tactic because although it realizes their goals quickly it cannot mean lasting results, nor can it foster any kind of acceptance by the public. If homosexual marriage proponents want homosexual marriage to be accepted by the country it has to be chosen by the country. It will not happen by force.
The Massachusetts legislators that voted for this recess most likely fall in to two camps: homosexual marriage proponents relying on the tactics I mention above, and politicians without the courage to follow the democratic process if it might hurt their political aspirations. Both positions are reprehensible. It is in the state constitution that the people deserve a vote on this issue since they have met the petition requirements. To deny them that vote for any reason is oppressive and wholly inappropriate for any legislative body.
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5 comments:
At base, the issue of homosexual marriage is a moral issue. I do not mean that it is a Judeo-Christian issue, I mean that the terms of the debate are moral terms and the outcome of the debate has moral significance for the participants.
Why, then, should moral issues be subjected to the democratic process? Why is that not legitimately the domain of the judiciary in America? Like it or not, moral issues are court issues in America, not democratic issues.
If you will look at my previous post about the homosexual issue you will see that I believe that the laws about marriage previously created were created with only men and women in mind, for better or worse. Some people today are saying, "We think those should include same-sex couples" and courts are saying "well, the laws don't specifically say you can't, so I guess that's fine." But it seems pretty obvious to me that the laws were not intended to extend to same-sex couples. In that case the proper thing to do is to change the law itself, not to change the interpretation. Lets pretend that the drafters of these laws had foreseen the current situation and specifically mentioned that marriage is between a man and a woman. Would it then be right for the courts to rule otherwise? I think it would be very wrong in that case. And since we have a pretty good idea of the intent of those laws we should uphold that intent and not exploit the loopholes. Instead we should follow the same process as if those laws were explicit, which is to vote on whether or not to change the laws through the legislature.
Well, despite your hypothetical, the laws aren't explicit. This goes back to a much older conversation, but, like it or not, laws and the interpretations thereof are not static. The content of any statute is not meant to apply only in a specific moment, but to apply from thenceforth. That means that the content is necessarily subject to re-interpretation. That is the very nature of law itself. We just don't and can't and shouldn't get around that.
That said, law as an abstract principle (as opposed to the actual content of statutes) is and should be a constant. That is what the Constitution is all about. It sets the terms by which development can happen and the boundaries in which that development must take place. It identifies the players and their roles and does what it can to give form to this republican system. In America, we have decided that the legislative branch is meant to pass laws, not interpret them. That is the job of the judiciary.
And that is what I can’t stand about these Right-Wing complaints about “activist judges” and “loopholes” and “the courts,” yours included. You say that to rely on the judiciary instead of the legislatures is, “to bypass the democratic process.” That is absurd! As if the judiciary process is somehow outside of the democratic process?!?! This is the nature of our democratic republic!
So, the great irony is that those who call themselves “Conservative” are actually wild populist radical nuts. What you are proposing is the most un-American, radical, revisionist thing I could imagine. The American republic has always stood against tyranny and injustice and that includes the tyranny of the mob.
J Morgan, obviously I have to disagree with you on this point. I don't believe that the judiciary was ever meant to change the meaning of laws. I believe that the judiciary was set up to verify the legality of laws. And to strike down laws that are illegal and uphold laws that are legal. Its true that they are not specifically changing laws since these laws are not explicit. But the fact of the matter is that the intent behind these laws has been clearly understood and employed a certain way since their inception. If this meaning of the law is wrong then the judiciary should tell the legislature that they need to change the law, as they have in New Jersey. The judiciary should not have the power to say "the law was this, but now its this." Instead they should have the power to say "this law is wrong or right." That is the distinction, and it makes all the difference.
Under the system you are suggesting all it would take to change a law to something you want is to get a few judges to agree with you. That is tyranny. Now, getting a few judges to agree that a law is wrong is one thing. Then the legislature can decide what the new law should be, representing the people in democratic process. Getting the judiciary to specifically change a law is imposing a law on the people without their consent, which is totally undemocratic. And the issue is compounded by cases such as the one this post is about where the legislature refuses to follow the process provided for the state's citizens to have a say in what a new law should be when the judiciary says that the current law is incorrect. If a law is found illegal and struck down the people have two options: formulate a new legal law through the legislature or amend the constitution in question to make the current law legal. Taking away that second choice undermines democracy.
What I am suggesting is not a departure from democratic ideals, it is a return to them. Our government was set up in such a way that the people approve of laws through their representatives in the legislature. The judiciary tells us whether those laws are right or wrong. They may also disambiguate an unclear law. A law is not unclear, however, if its intent is known. And in the case of marriage it is profoundly obvious that the laws were originally meant to apply to a man and woman only. Judges can say that such a distinction is illegal and give the law back to the legislature, but they should not be redefining what the law means if its intent is not ambiguous. And, even if the judiciary does change the law the people should have the power to over turn the judiciary through amendments to the constitution, and the Massachusetts legislature is not allowing them to do that right now, which is the case in point for this post.
This comment is plenty long enough already, but I want to defend my position about using the judiciary to bypass democracy a final time. The intent of the United State's system is that the people will choose the laws within the bounds of the constitution through the legislature and the judiciary will make sure that the laws are indeed within those bounds. It is meant to be up to the legislature to fix laws that do not adhere to those bounds so that the people are still in control, albeit indirectly, of what the laws are. Having the judiciary change the laws to put them within the bounds of the constitution takes the power out of the hands of the people and puts it into the hands of a few Justices. This, in my mind, is a clear violation of the separation of powers and therefore undermines democracy.
I want to add this: When judges do interpret a law their job is to interpret what the law is supposed to mean based on the maker's intent as far as they can tell. NOT what they think the law ought to mean. So, when considering the marriage law, for example, the judges, in order to clarify the lack of explicitness, should consider who made the laws, when, and what the social and culture climate was at the time. Doing this I don't see how you can come to any interpretation of the law except to conclude that the makers were not explicit because they thought it was generally accepted that marriage is between a man and a woman, not because they wanted to leave it open to same-sex couples. Interpretation isn't about deciding what the law should mean now, but deciding what the makers actually meant when it is unclear.
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