Democratic Gay Marriage in Massachusetts

An itty bitty little news story is going mostly unnoticed, but it is a devestating blow to the arguments of the anti-gay marriage yahoos. The Massachusetts legislature has repealed a state law that prohibited out-of-state couples from getting married in Massachusetts if their marriage would be illegal in their home state. And here's the significance--for the first time a legislature, rather than a court has taken a positive action to allow same-sex marriage, and opponents can no longer truthfully say that it's only elitist unelected courts that are forcing gay marriage upon us. Oh, they'll still say it, but now we defenders of equality can point out that they're lying.

It shouldn't really matter. The criticism of unelected judges overturning the democratic will of the people is bullshit anyway. The primary purpose of supreme courts in constitutional governments is to ensure that the demos lives up to the ideals of its constitution, because unfortunately James Madison was right when he wrote in Federalist 51:

democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property:

When a court reprimands the public for being too miserly with equality, it's the public that's wrong, not the courts.

But what opponents of equality haven't noticed, or haven't wanted to notice, is that the Massachusetts state legislature has studiously refused to act ever since the 2003 state supreme court ruling. Because the court was interpreting the state constitution, the only remedy would be a constitutional amendment. Amending the constitution in Massachusetts requires that the same amendment be passed by two consecutive legislatures, with an intervening election. This sensible provision allows the public to throw the bums out if they don't like the proposed amendment, thus squelching it.

But not one session of the Massachusetts legislature has passed a repealing amendment--it was smashed by a vote of 151-45 in January of '07--despite the fact that they could have done so before the '04 elections, before the '06 elections, or since the '06 elections. While same-sex marriage may not have been legalized on a democratic vote, it proved to be impossible to get even one democratic vote to repeal it, and yet the citizens have never bothered to throw the bums out.

And note that the state legislature has now overwhelmingly voted to extend same sex marriage, a mere 3 months before the next election, which clearly signals their belief that the public is firmly on their side.

Opponents of same-sex marriage have been desperately clinging to the "elitist undemocratic judges" storyline as their last desperate hope for persuading the public. But they have missed the clear evidence that an initially skeptical public is irreverisbly trending toward support for same-sex marriage. The opponents have lost the battle to prevent it from being defined as a civil rights issue (and in this county civil rights issues always win eventually), and they are losing the demographic battle, as younger voters (roughly 40 and under) just don't see same-sex marriage as a threat to civilization.

It's all over but the shoutin', folks.

California Supreme Court Defends Equality for All

The California Supreme Court has overturned a state law banning same-sex marriage, ruling that the law violates the state constitution. According to the Court's opinion, "an individual's sexual orientation -- like a person's race or gender -- does not constitute a legitimate basis upon which to deny or withhold legal rights." Amen to that. As Thomas Jefferson said, "it neither picks my pocket nor breaks my leg" if gay couples get married. (Not that Tom would have gone along with this in his time, but that's the great thing about good principles--you just can't keep them limited to only the things you like.)

Because there's no federal constitutional issue at stake here, the case can't be appealed any higher. The only way to overturn this now is to amend the state constitution. A legislative amendment to the Constitution requires approval by 2/3 of each legislative house--an unlikely proposition, I think. A citizen initiative amendment can be put on the ballot if petitioners gather signatures from registered voters equal to 8% of the votes cast in the previous gubernatorial election, and only a simple majority to pass. Getting an amendment to overturn this ruling on the ballot probably wouldn't be too hard, and given that Proposition 22-the statutory initiative that banned same-sex marriage--received 61% of the vote bodes ill for keeping this ruling in place.

However, by the time an initiative can get on the ballot and be passed, there will probably be thousands of same-sex marriages in California, and then you do run into some serious issues--can a marriage authorized by the state be undone by the state against the wishes of the married couple? Will a majority of Californians be willing to do so? Let us hope not--let us just agree to grant all people the dignity of marrying the person they love. It was in California, after all, that my gay friend, Bill, came up to me during my wedding reception and said, "I want my wedding to be just like this." I'm still hoping he gets his wish.

Support for Same-Sex Marriage, by Age Cohort

Ed Brayton claims

A generation from now, we'll look back in bewilderment that anyone could possibly care whether a gay couple wants to get married or not,

I'd say he's right. Here's a graph I produced recently from data from the 2004 American National Election Study.

Source: University of Michigan, Center for Political Studies (2004)

Some people like to claim that young people just support it because they don't know any better yet. But that wouldn't explain why my cohort--low 40s--is more accepting than my mom's cohort (late 70s). It's pretty clear, a multi-generational shift is occuring. I predict same-sex marriage is here to stay in Massachusetts, and will exist in several more states before I retire.