Is same-sex marriage in the US running out of steam?

BOSTON, MASSACHUSETTS -- The Massachusetts high court was one of seven in the country which ruled against advocates of same-sex marriage during the month of July.   On July 7, the New York Court of Appeals ruled 4-2 that its state Constitution doesn't require same-sex marriage. The same day the Georgia Supreme Court reinstated a state constitutional amendment defining marriage as the union of a man and a woman. The Massachusetts decision upholding the ballot question came on July 10. 
On July 12, a Connecticut Superior Court judge in New Haven ruled that the reservation of the name "marriage" to husband-wife couples did not violate due process, equal protection, or freedom of expression and association.

Then on July 14 the 8th US Circuit Court of Appeals overturned a decision of the US District Court in Nebraska that had held Nebraska's state constitutional amendment defining marriage to be a violation of the federal Constitution. The same day, the Tennessee Supreme Court dismissed a challenge to putting their state constitutional marriage amendment on the ballot.

Just last Wednesday the Washington State Supreme Court ruled the same way as New York's highest court.

Could a clear judicial consensus be emerging?

Well, it's too soon to tell -- the Supreme Court in New Jersey is about to rule on same-sex marriage, and could conceivably go the way of Massachusetts, which is the only American state in which same-sex marriage has been legalised, following the so-called Goodridge decision by its Supreme Court.

And the Massachusetts ruling was hardly a bold statement. It amounts at most to baby steps toward common sense — that the people have at least a theoretical right to decide.

A bold move by Bay State legislators

Sadly, not everyone is keeping up with the rest of the class. Consider the lesson on democracy offered by Representative Thomas Sannicandro, a supporter of same-sex marriage.

On July 12, the state legislators met in constitutional convention to determine whether certain proposed amendments to the state Constitution should go to the ballot. The marriage amendment (like the others) The proposal only needs the votes of 50 legislators in this year's session and the next one in order to appear on the November 2008 ballot.

But the legislators bravely voted 100-91 to put off the issue until November 9, two days after the state election.

Mr Sannicandro applauded this decision. According to the Boston Herald, he "said he voted for the delay so fellow law makers could vote without the pressure of having to face voters soon thereafter. 'They will absolutely vote their conscience because there's no campaign issue or no election in front of them.'”

From this statement we learn two things: (1) apparently state representatives routinely vote against their consciences; and (2) maintaining a good conscience requires barring the people from voting on a major public policy.

The Herald got right to the heart of the matter with its news story headline: "Pols do chicken dance over gay wed". The newspaper's editorial read: "Political cowards rule on the Hill". The Herald opined: "Law makers have acted in their own best interests here instead of in the interests of the people who elect them and deserve a swift resolution to this nagging question (not to mention an opportunity to vote on it themselves)."

Democracy and Massachusetts judges

But in accord with the equal-branches doctrine, the war on democracy is not limited to the state Legislature.

Consider the obiter dicta of two of our state's "justices," John Greaney and Roderick Ireland, in a recent case. The Gay and Lesbian Advocates and Defenders had argued that a proposed constitutional amendment to ban same-sex marriages by defining marriage as between a man and a woman was off-limits because it would have reversed a judicial decision. This is a no-no under Article 48 of the Massachusetts Constitution.

Though they concurred in the ruling that the marriage amendment was properly certified by the attorney general, the justices opined that the decision by the State Supreme Court which determined that same-sex marriage was legal "may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution."

These judges are saying that it may be unconstitutional to amend the Constitution. Using a 4-3 ruling that is all of two years old, the justices appear to be moving away from the concept of a high state court and closer to something resembling papal infallibility.

As Professor Eugene Volokh rightly noted in his blog, "here the two judges are suggesting that the ultimate decisions are to be made by judges, and the people have no right to the final say on the subject. Under this theory, the judges end up being the ones who are sovereign, with the legal principles that they set forth being immune from control by the people."

Even Professor Laurence Tribe, of Harvard Law School, agreed in his posting to the blog that a "major difficulty... is that [the Greaney/Ireland opinion]... could even be said to be tone-deaf to the hegemonic view of judicial authority that it might be read as announcing."

To put it mildly, such a statement from the bench is undemocratic. It's also unconstitutional. Consider what John Adams had to say about the role of judges and their fellow public servants:

"All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them" (John Adams, 1780 Massachusetts Constitution, Declaration of Rights, Article V).
Here are two political appointees in our hack-infested state government declaring unto themselves not only the authority to dictate social policy without a trace of constitutional or common law to back them up, but possibly the authority to declare their decision irreversible.

Two men who happen to be politically connected claim the power not only to redefine marriage but possibly to prevent hundreds of thousands of voters from un-redefining it.

What sense does "power to the people" make when "here comes the judge"?

Dwight G. Duncan is a professor at Southern New England School of Law.


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