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February 25, 2005

Thinking strategically on gay marriage

Lots of interesting news on the gay marriage front this week.  Item the first: the Massachusetts Supreme Judicial Court has agreed to hear a constitutional challenge to the infamous 1913 law that is being used to bar out-of-state gay couples from marrying here.  (The law's original purpose was almost certainly to erect similar barriers to out-of-state interracial couples.)  Item the second: the Connecticut legislature appears to be on the fast track to adopting a civil unions law that will give gay couples all the rights and privileges of marriage under Connecticut law, except that it won't be called "marriage."

The important thing about the Connecticut story is that, if the proposed law passes, Connecticut will be the first state to adopt a gay marriage or marriage-equivalent law without having had a court tell it do so.  In other words, it will be the first time that the people's elected representatives have decided that granting full marriage (or marriage-like) rights to gay people is what they should do, rather than what they must do.  That's a really, really big deal.

The news from Connecticut also, I think, carries a lesson for those pushing the 1913 lawsuit here in MA.  While securing victory on an issue like gay marriage through the courts is probably faster than doing so through the legislative process, it is also much more dangerous.  One need only recall what happened in the 2004 elections to realize that backlash remains a serious problem in this area, and that criticizing "activist" and "unelected" judges who "legislate from the bench" is a great way to mobilize voters to undo whatever those judges have recently done.

I'm certainly not saying people shouldn't go court to protect their constitutional rights - that is a big part of what courts are there for.  But I am saying that when there is reason to think that a legislative solution might be available, that should always be the preferred option.  Here in Massachusetts, the legislature is overwhelmingly Democratic, the leaders of the two chambers (Robert Travaglini and Sal DiMasi) are sympathetic, and it seems to me quite possible that, if pushed, the legislature would tackle the 1913 law on its own.  And if the legislature repealed the law, no one could dispute the legitimacy of its action - in contrast, if it's the courts that throw out the law, you can easily imagine the howling that will ensue about unelected, activist judges in Massachusetts redefining marriage, blah blah blah.  Worse, you can easily imagine that the decision would give a big boost to the numerous anti-marriage state constitutional amendments that are pending around the country.

Bottom line: I think it's great that gay couples are getting married in Massachusetts, even though that came about through judicial action.  And a big part of why I think it's great is that marriage advocates can now point to Massachusetts and say "look, we have thousands of gay people getting married, and nothing bad has happened - society is still functioning, heterosexual marriage hasn't crumbled, and children still play."  So the Goodridge decision has created a powerful and real counterexample to the imaginary parades of horribles being tossed around by the anti-marriage crowd.  But rather than try to achieve more through the courts, why not use what the courts have already done as a way of shifting the focus to the state legislatures, both here and elsewhere?  (I haven't been following the debates in Connecticut, but I would bet that the legislators considering the civil unions bill have looked northward to see that legal recognition of gay relationships does not harm society, and that that is part of why the bill's progress has been so surprisingly swift.)  Any victories achieved in the state legislatures will carry more legitimacy than victories achieved in the courts, and are therefore less likely to lead to backlash.  Let's not win a few battles but lose the war on this one.

Posted by David at 04:38 PM in Massachusetts, National | Permalink


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» What Are We Fighting For? from The Republic of T.
I've been watching the same-sex marriage battle in Connecticut with great interest, mainly because I'm slightly mystified by the tug-of-war between civil unions and same-sex marriage. It looks like the civil unions bill will pass. On Wednesday nigh... [Read More]

Tracked on Feb 25, 2005 9:21:54 PM

» Supermajority Politics from Noho-missives
It's risky, but Blue Mass Group thinks the legislature (not the court) should repeal the Jim Crow era law they use to stop gay out-of-staters from marrying in Massachusetts -- this would definitely be vetoed. [Read More]

Tracked on Mar 3, 2005 4:05:21 PM

» "Addicted to the Courts" -- a Reminder to Liberals, Libertarians, and Conservatives: from The Volokh Conspiracy

NYU law professor Burt Neuborne — who has been, among other things, National Legal Director of the ACLU and Special Counsel to the NOW Legal Defense and Education Fund — [Read More]

Tracked on Apr 12, 2005 12:05:28 PM


You have a good point about Connecticut. Accepting second-class status is galling, but it might be the springboard to getting another state legislature to go all the way.

Posted by: Andrew | Feb 25, 2005 7:16:51 PM

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