Out of the Blue, Part II

The promised continuation of my earlier post on marriage (which you should read first), responding to this essay by B. Daniel Blatt:

Another argument that Blatt makes in which I see no merit:

Let me conclude, by returning to my general ambivalence on the Massachusetts vote. I would see it as a huge step if a state legislature, without being mandated by a court or pressured by interest groups, voted to extend the definition of marriage to include same-sex couples. But, the General Court only acted because the a number of citizens of the state presented petitions seeking to overturn a court decision. That said, the elected legislators of Massachusetts did, to some degree, consider the issue. And they answer to the citizens whom they represent.

Again, that's the way the system works. Legislatures pass laws. Ideally, they consider the constitutional ramifications of the laws they pass, but let's be honest here: legislators have been known to ignore consititutional questions, and have even passed laws designed to slide around those questions. (One need only follow the history of legislation concerning the teaching of evolution and creationism in public schools to see how that works.) Sure, it would be wonderful if legislators, all on their own without any prompting, just decided to legalize same-sex marriage. I have a startling revelatioin for you: legislators, on their own, don't consider anything they aren't pressured into considering. Laws exist to address the needs of society (in the ideal world -- these days, "society" seems too often to mean major corporations and campaign donors), but legislators aren't always aware just what those needs are. Courts evaluate laws on the basis of their constitutional validity when citizens bring suit to pose that question. Of course the Massachusetts court only acted because citizens brought petitions -- that's the only way courts can act.

Blatt says, in the "comments" to his post (comment 12), "In this case, the court clearly overstepped its bounds. It should have dismissed the case and deferred to the matter to the legislature." This is one of the most extraordinary things I've heard in relation to this whole issue. In other words, what Blatt is saying is that the Massachusetts courts should have refused to do their job and trusted to the legislature (and keep in mind that legislatures are not the first place I would go for reliance on principle) to do it for them. This is simply incredible. The idea that the courts must necessarily defer to legislatures is a stretch. Granted, the courts will give great weight to the intent of the legislature in enacting a law, and rightly so, but we must remember that part of the reason the courts exist is that they not automatically defer to the legislature, simply because the Founders were well aware that legislatures can be wrong. It's called "checks and balances," and it is a fundamental part of our legal framework. I realize that the idea of an independent judiciary is anathema to the right, but so what? It works very well, even if some of us don't like a particular decision.

If those citizens believe that gay marriage is an issue important enough to merit a statewide referendum, then they can vote them out of office. And those who replace them can vote again on a new constitutional amendment. But, as I understand it, given the way the Massachusetts constitution works, such a referendum could not take place until 2012 — at the soonest.

There was, in Massachusetts, a general election between the first and second considerations of the proposed constitutional amendment. You can bet same-sex marriage was part of the mix. What actually happened was that legislators who opposed the amendment were retained and those who favored it were eliminated by the citizens of Massachusetts. In other words, Blatt's big "if" has already happened.

Blatt goes on to demand that same-sex couples and the "gay organizations" prove that they understand the "meaning" of marriage (which he doesn't seem to want to define). That seems to tie in with Rauch's arguments, which I will address in a later post.

There's a certain unreality in Blatt's essay -- he seems to acknowledge events without ever incorporating their meaning into his arguments. I can't really figure out the rationale, unless it's a sort of "faith-based science" sort of thing, where you start with your conclusions and pick the evidence that fits. Not the way I'm used to doing things.

NOTE: I misread Blatt's comments about Rauch's article, for which I apologize: Blatt is saying that Rauch has noted and thoughtfully responded to opponents of same-sex marriage. I still want to comment on Rauch's essay, however, because there are parts of it that bother me.