We're at a little bit of a loss as to how to contemplate this story. The Massachusetts legislature dodged the question of whether to put gay marriage on the ballot yesterday, delaying to the point where it probably won't be able to get onto the 2008 ballots. Gay activists greeted this decision with cheers and tears of joy, and we completely understand that emotion. Committed gay couples will continue to be married if they so choose, and that's what we want in the end.
But by sidestepping the issue, the Legislature has left room for arch-conservatives like exiting Governor Mitt Romney to cloak their homophobia in constitutional rhetoric. "Today, by effectively avoiding the constitutionally required vote on same-sex marriage, 109 legislators disgraced their oath of office," Romney said. Read: "I don't like gay people and I never have, but now I have the perfect excuse to complain about gay marriage without being politically incorrect."
Still, we're not above a little sleight-of-hand when it comes to getting what we want in the end, and here's why: As this article eloquently points out, the more time that gay marriage is legal, the more good examples will exist of why it should be. Gay marriage is not like abortion, which will be argued over forever because of the way it was legalized in Roe v. Wade. As positive as our abortion policies may be, you'll never see a physical example of why abortion SHOULD be legal - by nature it's regulation that hinges on what is not there. But as time goes by in Massachusetts, we will have more and more evidence that it isn't harmful, and that it in fact helps people. Then, when the time comes that it does go on the ballot (and it will, despite how many Massachusetts gay activists were rejoicing yesterday), more people will have gay families living next door, or in play group, or on the PTA. There's no way, then, that they will get enough votes to make a change. Perhaps then, too, the examples created in Massachusetts will help neighboring states realize that gay marriage isn't so apocalyptic after all.
Regardless, conservative lawmakers in Massachusetts and around the country received rejections this week they won't soon forget. To them we say, hey, it could be worse. You could be Kevin Federline.
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Did you note that the traditional marriage/anti-gay marriage proposition failed in Arizona on Tuesday? Did you note that those initiatives that passed did so with smaller margins than those that passed in 2004? Based on this, it is not difficult to argue that the decisions in the Vermont and Massachussetts high courts were bad for gay marriage.
As even liberal legal scholars agree, when courts remove hot-button issues from the legislative process they stop the natural political process that leads to compromise. Consider abortion in Europe—laws permitting abortion have passed through legislatures, not courts. Thus, even in countries where Catholic opposition to abortion is strong, abortion has become a non-issue politically. When groups lose politically, they tend to accept their losses and move on. Roe v. Wade's removal of abortion from the legislatures of the states made it a potent political issue that has helped cultural conservatives to win legislative majorities. The court decisions (particularly the one in Massachussetts) enraged opponents of gay marriage and frightened those who were prone to opppose it at first. Now that gay marriage has been around for a bit, it doesn't seem as scary, and future amendments are less likely to pass (at least with large majorities). But now, there are constitutional prohibitions on it in more than half of the states. Though state constitutional amendments are easier to push through than amendments to the federal Constitution, they still are not easy. If the legislatures, rather than the courts, in Massachussetts and Vermont had created gay marriage, there would still have been heated opposition, but it would not have been enough to stir up more middling voters. As it is now, the constitutional amendments in the states that have banned gay marriage will only be rescinded (if at all) when majorities actually support gay marriage. The I-don't-support-it-but-I-don't-really-oppose-it attitude of the median voter would have made gay marriage a realistic possibility in many states (through the legislative process) within a decade or so. I think the recent amendments will stay on state constitutions much longer. Which essentially means that, though the availability of gay marriage in some states may have started earlier than it would have if the duty had been left to legislatures, its unavailability in the majority of the states will continue longer than it would have in the absence of court decisions.
Cutting-edge judicial decisions are not always bad. Reticent majorities in the South made forced desegregation by judges the better path (especially since nationally, blatant racism was socially and societally unacceptable). But the lessons from the Civil Rights movement are not applicable everywhere. Imagine if the Supreme Court had struck down segregation in 1900. There probably would have been a federal constitutional amendment specifically permitting it—and the practice might still be existing today. The court decisions in gay marriage came at the wrong time, and were probably just wrong period. And they hurt gay marriage.
A couple of things. First, we're not sure you read the post correctly. We recognize that what the Massachusetts legislature did was a bit of trickery. And, we want the issue to go before voters. We are big believers in the legislative process, rather than judicial mandate.
BUT, we think you're dead wrong on this count: "If the legislatures, rather than the courts, in Massachussetts and Vermont had created gay marriage, there would still have been heated opposition, but it would not have been enough to stir up more middling voters." No way, José. If there had been a ballot issue in 2004 in Massachusetts on gay marriage, you can bet the middling voters would have been stirred up. That's when gay-marriage-hysteria was at its peak. It's practically what got George Bush elected.
Our point is this: obviously, gay marriage is best achieved through legislation. But we are at an extreme disadvantage here. For over a thousand years homosexuality has been a terrible social taboo. There has never been the opportunity to study legal, open, functioning gay families in the past. So until we have data on what happens when gays legally marry, people like James Dobson of Focus on the Family can tell make up whatever terror scenario they want to scare people. Children's lives will be ruined, for example. Health care systems will collapse. Traditional families will die out.
Until we can learn from a test situation like Massachusetts, gay people have nothing with which to counter these ridiculous claims. Sure, there are foreign countries who have legalized gay marriage, but when was the last time an American looked to Canada or the Netherlands for advice?
The Massachusetts bought us more time to show just how equal we can be, and deserve to be. Is it ideal? No. Will it speed up acceptance and help our fight? Probably.
And therefore, in our mind, is the sleight-of-hand worth it? Definitely.
I am not taking sides on the Courts v. Legislature debate, but bigmouth, I think people who argue for the legislative route believe that the reason FOR the gay-marriage-hysteria peak in the 2004 election was because Goodridge was decided in November of 2003 and a number of other state actions were pending in the aftermath of Lawrence v. Texas, decided earlier that year. Bush/Rove/Other Crazies had therefore plenty of time to talk about "activist judges" destroying marriage, bring the issue into the debate, and get more state amendments onto ballots for the November 2004 election. Had there been an amendment on the Mass. ballot in Nov. 2004 without the Mass. court having decided Goodridge in 2003, who knows where the middling voters would have been, the argument goes. More causation than correlation, they say.
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