Wednesday, January 04, 2006

Specious SSM Show

The lie lobbing and the lobbying have begun on same-sex marriage. Expect the spurious and specious this pending 185th Massachusetts General Court.

The Joint Sessions can shorten this waste of money and human effort in the push to put a ballot initiative forbidding same-sex marriage here. Yet, because the law only requires a 25% approval from the General Court, repeated in the 186th session, there is an even chance that this spiteful and ill-conceived amendment will progress.

Expect repetition of several lame arguments as this progresses. Keep in mind that shouting an argument or making the same one again and again does not make one right. It does make you loud, repetitive, and often irrational.

Lame Lie, the First

The anti-gay and anti-SSM folk here love to say, “Queer ‘marriage’ is not legal. There is no law at allows it.”

Without meeting each person making such a foolish argument, we can’t know whether they are dishonest, dull-witted, or just repeating what they heard. Perhaps they didn’t do too well in civics and history classes.

A crucial and clear distinction among totalitarian regimes and democracies is that in the former what is not specifically permitted is forbidden. In democracies, that is reversed.

The General Laws of Massachusetts carefully regulate marriage. Unfortunately for the anti folk, it did not originally consider SSM. On the other hand, Chapter 207 starts with 14 very specific Sections forbidding this or that type of marriage – bigamy, incest, underage and on and on.

It goes into the heart of marriage regulation here. The question remains, who is legally entitled to a license to marry? The bulk of the who-can laws related to the license and solemnization. Again, the General Laws are very specific about that. This reinforces the clear distinction carried over from English common law to the Bay Colony to our commonwealth’s constitution, that marriage here is a civil contract.

Of course, a substantial minority of couples marrying here do so in a church or otherwise with a cleric performing the solemnization. The religious veneer is nice but not required.

The commonwealth regulates who can enter into a marriage and who can annul or divorce. Sorry, God Guys, that’s the law here.

So back to the question about where’s the law? It has two parts. First the constitution here and its amendments specifically forbid unequal treatment by gender. The cutesy claim that a lesbian can marry, so long as the spouse is a man, is specious and in violation of law here. Second, in absence of a restriction, homosexuals can marry as freely as heterosexuals. They too can enter into this civil contract, with or without the religious trappings.

In addition, the Goodridge decision ordered the legislature to legalize SSM specifically. Massachusetts already had the building blocks for this decision – a long history of marriage as a civil contract, no laws forbidding SSM, and laws or amendments requiring equal treatment of citizens and no creation of separate classes of rights.

Make Me Safe

The fact now is that the anti folk want to introduce new restrictions and limit the civil contractual rights of a class of citizens.

Perhaps not so oddly, many of them seem to also excuse the White House’s domestic spying of late. While these at first glance seem quite different, they share a scary thread. These folk are perfectly willing to limit Americans freedom, including their own, in exchange for simple-minded certainty. They need the comfort of the known and will give up much and force others to give up more to get it.

It’s a scary world.


Anonymous said...

MM, I think I disagree with your reading of Goodridge, though I certainly agree with you that the "There's no law!" argument pushed by doofuses like MassResistance is a ridiculous canard.

I just don't see any reference in the SJC's opinion ( ) to the "what is not specifically permitted is forbidden" principle you reference here. As I read it, the logic of the opinion (after being greatly simplified) goes something like this:

1. As the plaintiffs point out, there's nothing in the Massachusetts marriage statutes that explicitly limits marriage to opposite-sex couples.

2. It's very clear, though, that the legislative intent in those statutes was to include only opposite-sex couples.

3. But that intent, that reading, is unconstitutional. "Barred access to the protections, benefits and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under the law."

4. So the only way for a court or an executive agency to constitutionally interpret/apply the longstanding marriage statutes is to allow same-sex couples to wed under their terms. Specifically, the only way to make the statutes constitutional is to broaden the term "marriage" from the intent mentioned in (2) above to "the voluntary union of two persons as spouses, to the exclusion of all others."

5. To make the statutory set-up clearer, though, the Legislature is invited to "take such action as it may deem appropriate in light of this opinion." The court will allow 180 days for that and other logistical issues to get worked out.

The key point that the 'phobes are missing is that step (4) is all that's necessary to make gay marriage legal. The court's job--any court's job--is to interpret the law and to strike down provisions or interpretations that are barred by state or federal constitutions. (Cite: Marbury v. Madison, 1803.)

That's all that's necessary here. Applying the marriage statutes in a heterosexist manner, the SJC held, violates the Massachusetts Constitution. That holding needs no ratification by a legislature or governor. The only statutes necessary--the Massachusetts marriage statutes--have been on the books for centuries.

As usual, MassResistance and company have no idea what they're talking about.

- Rieux, a lawyer who wishes he could work on stuff like this all the time

massmarrier said...

Yes, that's fair and another way to look at it. I did mix bagels and doughnuts a bit. I'm not a lawyer and don't even play one on the Net, but I have gone through the Bay Colony laws, related texts of the time and since, the original commonwealth constitute and the derivative laws.

I extrapolated the forbidden/permitted interpretation because it underlies these laws and so many others. I'd like people to think of this concept when the simple-minded Limbaugh/Coulter type it-isn't-explicitly-stated argument arises. It's a complex environment and we don't get to check our brains at the door. Thinking is permitted.

It is astonishing that governors and legislators have hidden from this, relying instead on courts and ballot initiatives to liberalize or restrict existing laws and regulations. Even in Goodrich, the majority ruled:

"In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

That was a clear enough order and in lieu of action by the General Court, takes the effect of law.

Much of this revolves about the simplicity of Massachusetts marriage law. The question before the SJC came down to who has the right to a marriage license (and can you create different classes by gender and sexual preference despite our protections in those areas)? The answer to the first is pretty much unmarried adults who don't fit in the restrictions.

I do admit in this blog repeatedly that the Massachusetts decision would have been much harder to win and implement in most other states. Again, we had those essential legal foundations and history. There were good reasons our colony's founders distrusted the theocracy from which they fled.

Anonymous said...

Rieux is correct, and I would like to add something to that. The "problem" of not having a statutory prohibition of gay marriage (and thus triggering a judicial decree that same-sex couples should get marriage licenses) can easily be remedied by passing a law.

However, when a law or reading conflicts with the constitution, it is not law at all. The constitution is the highest law of Massachusetts and anything inconsistent with it is null and void. In this case, the legislature can't do anything to solve the 'problem', but to pass a constitutional amendment.