You’ve probably heard by now that the effort to place a traditional marriage amendment before Massachusetts voters has failed. It’s properly hard to amend the state constitution, and I’m loathe to complain about the process or about the lengths to which same-sex marriage proponents went to secure the necessary votes to defeat the measure. (I’m assuming that what they did was "merely" political, and not illegal.)
But there’s a lesson here for defenders of traditional marriage. Once the state courts have spoken, "finally" and authoritatively, the advantage goes to the defenders of the new status quo. Those who prefer a normally deliberative political process to constitutional amendments have to be aware that proponents of same-sex marriage aren’t about to eschew questionable judicial gains. They care about results, not process, about winning, not the consent of the governed. Stated another way, they are convinced that they have rights, which don’t depend upon anyone’s consent. Those who disagree have to contest that claim on every level, with every legitimate means at their disposal. A preference for "moral federalism" is fine, but for the proponents of same-sex marriage, federalism is merely a tactic in the service of a universalistic, rights-based goal. And their preference for federalism isn’t necessarily associated with a preference for political, as opposed to judicial, tactics, which seems to me to be the basis of traditionalist moral federalists.