Strengthening Constitutional Self-Government

No Left Turns

Marriage in Massachusetts

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.

Discussions - 21 Comments

Joe, You are on the mark. Federalism is a (poor) way of avoiding the issue head on. The crux of the matter is the nature of marriage, not the nature of our politics. This goes too for abortion. Principle plus politics alone can defeat perversion.

The use of the word "perversion" does not suggest to me a willingness to settle for a political outcome.

Just one addendum to your fine statement, Joe: It's a regime issue if anything is, and so transcends federalism.

By "regime issue" do you mean that the regime's character would be fundamentally altered if same-sex marriage were permitted, on a state by state basis? Or do you mean that a federal constitutional amendment is needed?

You forget that Massachusetts, unlike almost all other states, does not have
elected judges--they serve for life terms (now 70 years of age), once appointed by the Governor. 3 Republican and 1 Democratic judge decided that Massachusetts laws on marriage were discriminatory, 1 Republican and 2 Democratic judges dissenting. Massachusetts has never believed that ALL matters, social or economic, must be left to public decision by vote or election. Same premise on which the federal constitution was adopted, as well.
Founding fathers would NOT support
federal constitutional intervention in such matters, philosophically speaking.
It's distinctly not conservative to do so.

Steve, I mean the former, which in turn would justify the latter.

So same-sex marriage is more threatening to the regime than abolition of slavery (which was permitted to the states) or women's suffrage (likewise)?

Often, inter-racial marriage comes up in this context, but the Supreme Court of course eventually took that matter away from the states. Should inter-racial marriage instead have had an amendment?

I suppose we come back to the question whether same-sex marriage undermines the family, the child-bearing family, on which civil society depends. Not to mention religious scruples.

The family is more fundamental to civilized society than the abolition of slavery. You can just look at history and see that. The education of males to be husbands and fathers is accomplished by God in Genesis as the way out of the male's inchoate rage against death of the post Adamic and pre-Noahide world. The Homeric equivalent is the Iliad and the Odyssey. Men and women and children, that is human life. Male obsession with their own sexuality is fundamentally anarchic--and when incidentally genteel should be disciplined by discretion.

You're all very well-spoken people here, and I admire that. But I can't help but feel in this case it's the best crafted hate-speech I've ever read.

That's no doubt what many of my colleagues would think. But do I deserve to be denounced boringly but rhythmically in the Stalinesque mode, tried for treason and executed in the "Real Conservative" method?

piker62 - Explain. Please make your point.

The gay marriage debate echoes similar arguments of years past - we can't let the slaves marry, we can't allow interracial marriage - always with the really good reason that permitting the wrong people to marry will bring down society. And in these previous cases the real issue, usually unspoken, was that these people were less than human.

You don't preserve marriage by forbidding people who love each other from marrying. It doesn't make any sense.

I agree with your conclusion, though not with your rhetoric.

Thanks for that. I'll give the rhetoric some thought.

Andrew Sullivan told us that things like polygamy and beastiality would not befall us if gays were allowed to marry and the slippery slope argument was bogus.

Today, while gays cannot legally marry, we do have a bit higher tolerance of them and we are starting to have a higher tolerance of those that want to have multiple spouses and those that want to screw animals.

Ya thing I am joking? We have a new cable show on one topic and movie, played at Cannes no less, on another.

So, what do we do? Where is the line drawn?

One thing is for certain, people of supposed education, can easily find reasoning for any act, be they benign, disgusting, or just uncomforting and I assert that this is what this debate truly alludes to and that this reasoning is no such thing.

There's reason, there's rationalization, and there're fixed habits of mind. Not the same; usually hard to distinguish.

Dale, these entertainments would be better slippery slope arguments if the debate was about legalizing gay polygamus marriage or gay interspecies marriage. Neither of these has come up on the ballot, so far.

I was also going to point out that polygamy and bestiality have existed for centuries, and that countries which do allow gay marriage haven't seen spikes in those behaviors. But then this movie thing reminded me that we all came so close to passing "cage all humans" laws after Planet of the Apes came out, and that gives me pause for thought.

Steve Thomas, you and I often are on the same page; if you would take the recommendation of a (more) conservative friend, please read Justice Cordy's dissent in the Goodridge v. Mass (2003) opinion. For a longer statement of the pro-traditional marriage view, see Maggie Gallagher's 2005 University of St. Thomas Law Review, v. 2, n. 1 (reply to Andrew Koppelman). Happy to discuss.

Paul, I'd be happy to. Thanks. It may take a few days.

Yep, they have existed for probably all of humanity, but that, like murder, does not make it right.

Steve, take your time. Anything for me to read in the interim? (I've already read Rauch and Sullivan. But rereading isn't precluded!)

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