My two dads.
Under the federal constitution’s full faith and credit clause, legal relationships formed in one state must be acknowledged in all others. This is useful because, for instance, contracts are a matter of state law and most would expect that a contract formed in Illinois remains enforceable even after a party to that contract leaves the state. Likewise, when a deadbeat dad moves from Missouri to California, child support orders entered by a Missouri court must be recognized and enforced by California courts. If that were not the case, a mother would have to go through the whole judicial process again in the father’s new state of residency, with no guarantee that the father wouldn’t just pick up and move a second time. But marriage happens to be a legal relationship, hence the growing national debate on same-sex marriage.
In November of 2003, a one-vote majority of the Massachusetts Supreme Court decided that any prohibition on gay marriage violates the equal protection clause of the Massachusetts state constitution and gave the Massachusetts legislature 180 days to bring state law into compliance with its holding. In a subsequent advisory opinion, the Court further instructed the state legislature that providing homosexuals with a civil union alternative would not suffice--gay marriage, and nothing less, was mandated by its decision.
With this in mind, if the full faith and credit clause of the federal constitution operates as it was generally intended to mean, the law of Massachusetts on gay marriage (gay marriage, yes!) becomes the law of the land (consensus is gay marriage, no!). Homosexuals would marry in Massachusetts, then take their new legal relationship elsewhere. This result turns majoritarian democracy on its head. Five Massachusetts judges have decided, by judicial fiat, to embrace gay marriage. This is all well and good. Gay people probably should be able to get married. But the point is, five individuals have made a decision which: (1) binds the entire country; and (2) is indisputably disagreed with by a strong majority of the nation. On the other hand, it’s not entirely clear that this has yet happened. In 1996, Congress passed the Defense of Marriage Act, which purportedly allows a state to refuse to recognize same-sex marriages occurring in other states. I say purportedly because the full faith and credit clause appears in the US Constitution, and DOMA is just a federal law. If the two conflict, the constitution wins out because, by definition, DOMA is unconstitutional. The Bush administration has made a lot of hay with this and I don’t blame them--it’s a good issue from a political standpoint because America just isn’t “ready” for gay marriage. What I take issue with is how Bush has turned “judicial activism” into a perjorative.
It was not so long ago that “rampant judicial activism” ended southern segregation in the face of an unflinching white majority which favored its continuation. No state legislator would have anything to do with the issue because then, as now with same-sex marriage, popular opinion ran contrary to social justice. The same was true of state laws criminalizing interracial marriage--it took an activist judge to do what state legislators (and their constituents) would not. And to bring things home for those of us that aren't gay, black, or into people that are a different color than us: I don’t know this for a fact, but I suspect that Japanese-American internment during WW2 also enjoyed broad support from the Northern-Pacific community. But on the other hand, I don’t believe in enlightened despots, which is to say that five people elected by a fraction of our citizenry (are justices elected in Mass?) should not be charting a course for the entire nation, no matter how intelligent, well-meaning, and substantively correct they are. You could probably criticize this approach for exalting procedure over substance, but so what. Correctness of procedure is the bedrock of our democratic society. We’re not supposed to cut corners because the constitution won’t allow it.
You may have noticed that I’ve already contradicted myself more than once. I don’t know exactly how I feel about the issue. I nearly shit myself with rage whenever someone from the “Family Research Council” shows up on cable and says that gay marriage is emblematic of the moral decay of American society. Listen--there’s nothing wrong with sticking your dick in someone’s ass. You’ll probably go to hell, but let’s be honest--who among us isn’t? But it does piss me off when people start screwing around with the constitution b/c I’m not entirely persuaded that marriage is a fundamental right, rather than a privilege. This is typical of me, i.e., of course public schools should be equally funded, as long as my property taxes aren’t diverted away from my hypothetical children and spent instead on, God forbid, those poor people schools. But that’s the crux of the issue--it’s complicated. That’s why I hate politics. It’s too easy to kick the shit out of gay marriage and piss on those filthy activist judges who support it. No politician takes the time to educate, or even make an honest fucking argument for why we should agree with them.
In November of 2003, a one-vote majority of the Massachusetts Supreme Court decided that any prohibition on gay marriage violates the equal protection clause of the Massachusetts state constitution and gave the Massachusetts legislature 180 days to bring state law into compliance with its holding. In a subsequent advisory opinion, the Court further instructed the state legislature that providing homosexuals with a civil union alternative would not suffice--gay marriage, and nothing less, was mandated by its decision.
With this in mind, if the full faith and credit clause of the federal constitution operates as it was generally intended to mean, the law of Massachusetts on gay marriage (gay marriage, yes!) becomes the law of the land (consensus is gay marriage, no!). Homosexuals would marry in Massachusetts, then take their new legal relationship elsewhere. This result turns majoritarian democracy on its head. Five Massachusetts judges have decided, by judicial fiat, to embrace gay marriage. This is all well and good. Gay people probably should be able to get married. But the point is, five individuals have made a decision which: (1) binds the entire country; and (2) is indisputably disagreed with by a strong majority of the nation. On the other hand, it’s not entirely clear that this has yet happened. In 1996, Congress passed the Defense of Marriage Act, which purportedly allows a state to refuse to recognize same-sex marriages occurring in other states. I say purportedly because the full faith and credit clause appears in the US Constitution, and DOMA is just a federal law. If the two conflict, the constitution wins out because, by definition, DOMA is unconstitutional. The Bush administration has made a lot of hay with this and I don’t blame them--it’s a good issue from a political standpoint because America just isn’t “ready” for gay marriage. What I take issue with is how Bush has turned “judicial activism” into a perjorative.
It was not so long ago that “rampant judicial activism” ended southern segregation in the face of an unflinching white majority which favored its continuation. No state legislator would have anything to do with the issue because then, as now with same-sex marriage, popular opinion ran contrary to social justice. The same was true of state laws criminalizing interracial marriage--it took an activist judge to do what state legislators (and their constituents) would not. And to bring things home for those of us that aren't gay, black, or into people that are a different color than us: I don’t know this for a fact, but I suspect that Japanese-American internment during WW2 also enjoyed broad support from the Northern-Pacific community. But on the other hand, I don’t believe in enlightened despots, which is to say that five people elected by a fraction of our citizenry (are justices elected in Mass?) should not be charting a course for the entire nation, no matter how intelligent, well-meaning, and substantively correct they are. You could probably criticize this approach for exalting procedure over substance, but so what. Correctness of procedure is the bedrock of our democratic society. We’re not supposed to cut corners because the constitution won’t allow it.
You may have noticed that I’ve already contradicted myself more than once. I don’t know exactly how I feel about the issue. I nearly shit myself with rage whenever someone from the “Family Research Council” shows up on cable and says that gay marriage is emblematic of the moral decay of American society. Listen--there’s nothing wrong with sticking your dick in someone’s ass. You’ll probably go to hell, but let’s be honest--who among us isn’t? But it does piss me off when people start screwing around with the constitution b/c I’m not entirely persuaded that marriage is a fundamental right, rather than a privilege. This is typical of me, i.e., of course public schools should be equally funded, as long as my property taxes aren’t diverted away from my hypothetical children and spent instead on, God forbid, those poor people schools. But that’s the crux of the issue--it’s complicated. That’s why I hate politics. It’s too easy to kick the shit out of gay marriage and piss on those filthy activist judges who support it. No politician takes the time to educate, or even make an honest fucking argument for why we should agree with them.
1 Comments:
Your contradictions confound me. It's indeed a dilemma - and often what we decide to do has nothing to do with logic or reason, but with a visceral reaction.
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