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Jewish World Review
Dec. 18, 2006
/ 27 Kislev 5767
The Constitution's guardrails
A lawsuit filed in US District Court last week accuses 109 Massachusetts lawmakers
of violating the US Constitution. The plaintiffs are leaders of VoteOnMarriage.org,
a grass-roots campaign to amend the Massachusetts constitution by defining marriage
"only as the union of one man and one woman."
It was a year ago this week that the proposed amendment, having attracted a
record-setting 170,000 signatures, was formally transmitted to the Legislature by
the Massachusetts secretary of state. What was supposed to happen next is spelled
out in the state constitution. Article 48 directs the House and Senate to meet
jointly and vote on amendments proposed by citizen initiative; those that get at
least 50 votes in two consecutive sessions are then put on the state ballot.
But for a year now, the overwhelmingly Democratic Legislature has declined to obey
the law. On May 10, it voted to delay consideration of the marriage amendment until
July 12. On July 12, it recessed until Nov. 9. On Nov. 9, by a vote of 109-87, it
recessed yet again, to Jan. 2, 2007. Which just happens to be the day the current
legislative session expires and all unfinished business dies with it. If that
happens, it will mark the second time in five years that the Legislature has killed
a marriage amendment by flouting the Constitution and brazenly refusing to vote.
So the amendment's sponsors have gone to court, in the longshot hope that a federal
judge will either order the recalcitrant legislators to comply with the law and take
the required vote, or put the amendment on the 2008 ballot anyway if they won't.
(Governor Mitt Romney has filed a similar complaint in state court. So have sponsors
of another amendment, one dealing with statewide healthcare.)
The response to all this from many supporters of same-sex marriage has been a
tortured explanation of why defying the Massachusetts Constitution is actually a
good thing. "It's not a matter of following the constitution," the legal director of
the Massachusetts chapter of the ACLU told my Boston Globe colleague Sam Allis.
"It's following the constitution down the drain." In other words, nothing must be
allowed to jeopardize same-sex marriage not even democracy and due process of
Not all advocates of same-sex marriage have been that cynical. "The legislature has
done, in my opinion, the wrong thing," writes Andrew Sullivan, a leading
gay-marriage proponent. "By denying the voters the chance to have the final decision
on marriage rights, the pro-marriage forces have lost a clear chance at democratic
legitimacy. Yes, in some respects, civil rights should not be up for a vote. But
many opponents of equality in marriage do not accept the premise that civil marriage
is a civil right for gays. I think they're wrong; but it's an honest disagreement. "
America's political battles would be a lot less poisonous if more combatants would
acknowledge that their opponents are not monsters or villains, but fellow citizens
with an "honest disagreement." And as Sullivan notes, political actors forfeit
legitimacy when they win their ends through undemocratic means.
Nor is legitimacy all they forfeit. When the legal process is subverted by lawmakers
who care more about blocking a certain result than obeying the constitution they
swore to uphold, they leave all of us including themselves less secure.
Robert Bolt memorably explained why in "A Man for All Seasons," his drama about Sir
Thomas More. In a famous passage, More explains to his prospective son-in-law,
Roper, that until someone has broken the law, he must not be arrested not even
"if he was the Devil himself."
ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you where
would you hide, Roper, the laws all being flat? This country's planted thick with
laws . . . and if you cut them down and you're just the man to do it d'you
really think you could stand upright in the winds that would blow then? Yes, I'd
give the Devil benefit of law, for my own safety's sake.
The legal process that Bay State lawmakers so blithely disregard today, they or
their supporters may fervently depend on tomorrow. The Constitution's guardrails
were erected for a reason. There's no telling who may get hurt without them.
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