Boston Globe columnist Sam Allis says he's a "process liberal."
This is the dismissive term used by Arline Isaacson, the fiery co chairwoman of the Massachusetts Gay and Lesbian Political Caucus, to describe those whose support of a lefty cause is tempered by their commitment to play by the rules.
It is, in this case, aimed at people like me who support gay marriage but oppose the legislative dodge, all but killing a constitutional ballot initiative barring gay marriage, exercised earlier this month by the House and Senate, sitting together as a Constitutional Convention.
"It's not a dodge at all," Isaacson maintains about the Nov. 9 vote to recess rather than vote on the amendment. "What we stand to lose is so significant, and it's so unfair for our supporters to expect that we should just lie down and say, 'It's OK, the process is more important than our rights.' "
I can understand the pretzel-twisting logic Isaacson is using. It must be excruciating to think that you have to follow the rules in order to get rights to which you are entitled by judicial fiat. That you might lose those rights through legislative initiative must be painful. And from Isaacson's statement, it is more painful than homosexuals should be expected to bear.
Process liberals get tagged in torrid single-issue causes whose advocates like Isaacson conclude that the end justifies the means. That the goal is so important, they can ignore due process, in this case the state constitution.
"It's not a matter of following the constitution," says John Reinstein, legal director of the American Civil Liberties Union of Massachusetts. "It's following the constitution down the drain."
Great line, but, of course, once you start choosing which parts of the constitution to obey, you're practicing cafeteria constitutionalism, which invites cynicism.
Allis is right, of course, because once we start deciding we will follow the constitution here but not there, we get into the kinds of legal, ethical, moral, and political knots that destroy the institution we ostensibly vow to live in.
For me, that is the point in allowing the anti-gay marriage initiative to be voted on by the people. According to Allis, the Article allowing for initiatives to be placed on the ballot in Massachusetts was added to the state constitution in 1918 "to provide citizens a means to thwart an obstructionist legislature." If the state's judges can find a right to homosexual marriage in the state constitution, why can't the legislature allow citizens to exercise another right found in that document?
The reason, of course, is that same-sex marriage advocates are pretty damn sure that such a measure would pass, and probably pass overwhelmingly. Most other states that have put marriage definition amendments on their ballots have had them pass. Simply put, while most Americans favor some legal recognition of gay relationships (for next-of-kin or inheritance purposes, for example), they don't want to call that marriage.
I've seen arguments made comparing gay marriage to the civil rights movement. But the civil rights of all Americans wasn't guaranteed by a court decision. Equal rights were guaranteed through legislative action including the 13th, 14th, and 15th Amendments to the U.S. Constitution, the Civil Rights Act of 1964 (possibly the most important piece of legislation ever passed), and the Voting Rights Act. In other words, in order to gain equality, black people had to convince enough non-black people that it was a good idea. It was only then that such legislation was passed and those legal rights secured.
If homosexual rights advocates want gay marriage to be more like the civil rights movement and less like the abortion wars, they need to spend more time convincing enough Americans that gay marriage is a good idea, rather than blocking legal initiatives they don't like. Because otherwise, they might win in the court but they won't win in the people's hearts and minds.
Because otherwise, they might win in the court but they won't win in the people's hearts and minds.
ReplyDeleteThat would be why a majority of Americans are still opposed to integrated public schools, lunch counters, washrooms, and buses - not to mention interracial marriages. Those civil rights were established by the judiciary, not by majority vote, and so lost permanently the battle for hearts and minds.
Of course, the actual facts are in exact reverse.
Once a civil right has been established and protected by the judiciary, bigots may never accept it - and decades later, may even argue that it would be better (see Trent Lott of Strom Thurmond) if equal civil rights had never been established. But practically, most people aren't bigots: they may fear what bigots tell them will be the terrible consequences of equal civil rights, but when they can look at integrated education, buses, lunch counters, interracial marriages... and, now, same-sex marriages - and see for themselves that nothing bad is coming of them - they quit fearing the terrible consequences that patently are not happening.
Did I respond to this yet or not? Can't remember.
ReplyDelete"This country cannot afford to be a prison of timeworn prejudices which have no basis in modern society. Let us bequeath to future generations a society which is more democratic and tolerant than the one that was handed down to us." link
I love countries who have politicians that make speeches like that. I wish the US was one of them.
You need to go back and read the coourt cases you are trying to cite. The courts were simply enforcing laws already created to ensure equality. It was not discovering new rights in old laws.
ReplyDeleteThe rights to which you refer had been in place since the days shortly after the Civil War. And, in fact, the Jim Crow laws which allowed the behavior you are against sprang up because of a court decision (Plessy v. Ferguson).
The courts were simply enforcing laws already created to ensure equality.
ReplyDeleteAnd do you think that those laws would have been supported by a majority vote before the civil rights movement, had there been a majority referendum?
Seriously: do you think that, had the people of Virginia been given the option to vote in 1967 on whether their state law against interracial marriages ought to be kept, they'd have voted for repeal? And if they had voted to keep the law, ought they have been allowed to do so on the grounds that only by persuading the majority in advance that interracial marriages ought to be legal, will interracial marriages "win the battle for hearts and minds"?
Frankly, I think you're strategically wrong. Just as the right to have an abortion has been broadly accepted by Americans since Roe vs. Wade, simply because so many Americans have either terminated an unwanted pregnancy or know someone who has, so marriages of same-sex couples are the best route to win acceptance of the legal right of same-sex couples to marry.
Homophobic bigots can argue that a happy couple on their wedding day, celebrating their 50th anniversary by getting legally married at last, are somehow going to destroy society... but most people will just smile at the sight.
You're still missing the point. In virtually every case you cited (with the exception of the Virginia case which overturned that state's law but, in fact, upheld the Constitution) the courts were upholding the law. Where do you think those laws come from?
ReplyDeleteThe Massachusetts legislature isn't proposing to legalize gay marriage. They are quite happy for the courts to take the heat. Contrary to all of the instances you've cited, the Massachusetts legislature isn't doing anything either moral or courageous (which seems to be what you were implying). They are doing something cowardly, deceitful, and unconstitutional.
They are doing something cowardly, deceitful, and unconstitutional.
ReplyDeleteCowardly I suppose is arguable. Effectively, they've upheld equal civil rights according to the Massachusetts constitution, but they've done so just by refusing to argue about it. But given that Romney's motivations for trying to get them to argue about it were that he wanted a good homophobic launch for his run at the Presidency in 2008, I'm not sure it's either brave or cowardly to not let that happen: it's just a refusal to let him use their state legislature purely as a campaign springboard.
Deceitful? I can't see that they've practiced any form of deceit.
Unconstitutional? But equal rights for all are guaranteed in the Massachusetts Constitution. To argue that in supporting equal civil rights they are behaving unconstitutionally is, well, sort of backassward. Sorry.
Cowardly I suppose is arguable. Effectively, they've upheld equal civil rights according to the Massachusetts constitution, but they've done so just by refusing to argue about it.
ReplyDeleteThey are upholding a court ruling by specifically defying a right under Massachusetts law. Do you know the words "implicit" and "explicit"? The right for gay people to marry is "implicit" because the law doesn't specifically include them. The courts have interpreted their state constitution to include them. Whereas the right of citizen referendum is "explicit." In law, "explicit" rights trump "implicit" ones. For reasons, I assume, you understand.
But given that Romney's motivations for trying to get them to argue about it were that he wanted a good homophobic launch for his run at the Presidency in 2008, I'm not sure it's either brave or cowardly to not let that happen: it's just a refusal to let him use their state legislature purely as a campaign springboard.
Romney's motivations are no more relevant by your logic than the legislators. And regardless of Romney's motivations the legislators are deliberately violating the state constitution.
Deceitful? I can't see that they've practiced any form of deceit.
That's very deceitful of you. Or stupid. Take your pick.
Unconstitutional? But equal rights for all are guaranteed in the Massachusetts Constitution. To argue that in supporting equal civil rights they are behaving unconstitutionally is, well, sort of backassward. Sorry.
So is initiative and referendum. Why are you trying so hard to uphold one part of the state constitution but refusing to uphold the other? I'm perfectly willing to agree that the Massachusetts high court has found a right for gay marriage in their state constitution. I will also agree that Article 48 specifically allows citizens to put initiatives on statewide ballot. Not only that, but if the legislature really believed in gay marriage, they could pass a law formalizing the court decision. Is there any particular reason you're against that?
You seem to be under the mistaken impression that the courts are "super-legislatures." They aren't or at least, that's not what they are supposed to be. If you want gay marriage, get the legislature to pass a low. Or let citizens put it on the ballot. Either way formalizes what the citizens want, and isn't that the point?
The right for gay people to marry is "implicit" because the law doesn't specifically include them.
ReplyDeleteThe right for LGBT people to marry in the state of Massachusetts is explicit, because the law does specifically include that a man can marry either a man or a woman, and a woman can marry either a woman or a man. (I see no explicit exclusion of citizens by sexual orientation in this document, by the way.)
The right for same-sex couples, legally married in one state of the US, to have their marriage legally recognized is all states of the US, is explicitly recognized in the US Constitution, which does not say "Article IV applies to everyone except same-sex couples".
That's very deceitful of you. Or stupid. Take your pick.
Okay, fine: I'm stupid. I do not see how you can say that the Massachusetts legislature is being deceitful. What deceit do you say that they are practicing? And, if you assert that they are practicing a deceit, how did you discover that you were being deceived? If you feel that you have already explained how they deceived you and how you discovered their deceit, I apologize, and please indicate where you explained it: but it's an honest question. If you assert that they are deceiving other people, who are they deceiving, and how was this deceit uncovered?
Not only that, but if the legislature really believed in gay marriage, they could pass a law formalizing the court decision. Is there any particular reason you're against that?
Not at all. But you see, the US works on a common law system - you should be aware of this. Under a common law system, courts, as much as legislatures, determine what the law is. The legislature has the power to pass laws overriding or confirming court decisions. In the case of the legal decision determining that same-sex couples have the right to get married, the legislature has done neither of these things, but at present, it doesn't have to.
The legislature was elected to represent the interests of the people of Massachusetts. It would plainly not be in the interests of the people of Massachusetts to remove their right to marry legally. Equal civil rights should never be subject to majority vote.
Why do you hate democracy?
ReplyDeleteThe right of homosexuals to marry is not explicit because it is not stated in the Massachusetts state constitution. Conversely, the right of initiative and referendum is.
A court interpreted the state constitution to give homosexuals the right to marry. Another court could ALSO decide to take that right away. If you were really for homosexual marriage, you would support the legislature writing a LAW that would ensure that right.
Since you supposedly know about common law, you should also be aware that precedent can be overturned. That's why pro-abortion supporters are hysterical about conservative justices on the Supreme Court.
I guess you are just going to refuse to see that civil rights are always acquired legislatively, aren't you? No matter how many examples I give you, no matter how many times I have to smack you around for making ill-informed arguments, you're going to continue to make the same arguments over and over. Sorry, you're just wrong.
And you don't think it's deceitful to do everything possible to prevent voters from exercising their right to choice? I thought you were pro-choice? Why do you want to disenfranchise the voting population of Massachusetts? Are you afraid of them? It sounds like it.
The right of homosexuals to marry is not explicit because it is not stated in the Massachusetts state constitution.
ReplyDeleteAh. But it is explicitly stated in the Massachusetts state constitution that "All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."
Now, unless you wish to argue that marriage is not included under "natural, essential and unalienable rights", this passage in the Constitution is clear and explicit, and to deny marriage to a man because his chosen partner is another man, or to deny marriage to a woman because her chosen partner is another woman, violates the Massachusetts constitution.
If you were really for homosexual marriage, you would support the legislature writing a LAW that would ensure that right.
Is there a need? I took a quick look at marriage legislation in Massachusetts, and the only passage I found that did seem to need rewriting was a section defining which of your relatives you can't marry, which is apparently still written presuming that women only marry men and men only marry women. I don't think there's a very pressing need to rewrite that, since I presume any court would decide that the restrictions currently specified in fact applied to both genders, should a woman attempt to make an incestuous marriage with her sister. But, as a practical matter, undoubtedly the legislature should make time to pass a bill tidying up all thse details and repealling the old law against out-of-staters marrying in Massachusetts, originally set up to prevent interracial couples marrying. But there's no more need for Massachusetts to pass a bill explicitly saying that same-sex couples can marry than there was for them to pass a bill saying that mixed-race couples can marry. There is no law against it in Massachusetts: and there's a legal decision for it.
I guess you are just going to refuse to see that civil rights are always acquired legislatively, aren't you?
Well, yes. And so would Martin Luther King, and so would Rosa Parks, and so would Ernest Green, Elizabeth Eckford, Jefferson Thomas, Terrence Roberts, Carlotta Walls Lanier, Minnijean Brown-Trickey, Gloria Ray Karlmark, Thelma Mothershed-Wair, and Melba Pattillo Beals. They knew that civil rights are not acquired legislatively, not when the majority are against the minority having those civil rights.
And you don't think it's deceitful to do everything possible
No. It's not deceitful when it's being done openly. It would be deceitful if the legislature were concealing what they were doing: but every politician in a democracy has the right to follow their conscience, if they do so openly, and then the voters have the right to vote that politician out of office, if they don't like it. "Deceit" would be if this were being done behind closed doors and no one was meant to find out about it until after the next election.
to prevent voters from exercising their right to choice? I thought you were pro-choice?
I think that it's more important that the citizens of Massachusetts have the right to marry, than it is for the citizens of Massachusetts to have the right to vote that the right to marry is a civil right that must be restricted to heterosexuals only. I am pro-choice, and therefore against anti-choice legislation.
I'm pleased that that the legislature of Massachusetts also feels that inalienable rights guaranteed by the Constitution are sufficiently important that they should not allow them to be voted away from minorities by a majority vote.
If the voters of Massachusetts disagree, they still have the choice to vote the legislature of Massachusetts out of office at the next election, and put in a fresh batch of politicians. But they have had this right for the last two elections, remember, and they haven't exercised it.
The illogical nature of your arguments is hilarious.
ReplyDeleteOn the one hand, you want to argue that voters have a "choice" in electing legislators, yet you don't think they have a "choice" in using their own state constitution to determine which laws will be legal in their own state.
Then there's your argument about what the state constitution says about marriage. There's nothing in it that recognizes gay marriage and, in fact, no court had found a right to gay marriage for more than 200 years. Yet one finally interpreted their constitution as having one. I'm telling you that whatever "right" you think a court can give, it can just as easily take away.
Your arguments highlight the biggest problem with issues today. Most offensive and/or unpopular ideas are taken to court today to cram the issue down people's throats instead of doing the hard work necessary to persuade people to the rightness of an idea.
Women gained the right to vote and other protections not by judicial fiat but by persuading enough men that it was the right thing to do through passage of the 20th Amendment and other laws. Black people also gained the right to vote, not by court order, but through the amendment process. And when bad case law (Plessy) created the "separate but equal" system that black people lived under for nearly 100 years, it wasn't Brown v. Board that changed that. It was legislation.
You say civil rights shouldn't be determined by the people. Well, that's interesting, since every right not given by God is, in fact, determined by the people.
Most offensive and/or unpopular ideas are taken to court today to cram the issue down people's throats instead of doing the hard work necessary to persuade people to the rightness of an idea.
ReplyDeleteExactly how are a couple - or even 8000 couples - getting legally married "cramming the issue down people's throats"?
You say civil rights shouldn't be determined by the people.
No. I say that civil rights should not be removed from minorities by a majority vote.
Well, that's interesting, since every right not given by God is, in fact, determined by the people.
Quite. But the difference is, I include among "the people", all the people - including lesbians and gays who want to get married, or who are married, and whom I feel ought not to have their marriage abolished, or their right to denied. Arguments that "the people" should get to decide ignore the plain fact that this would result in the people directly affected being unable to get to decide.
Exactly how are a couple - or even 8000 couples - getting legally married "cramming the issue down people's throats"?
ReplyDeleteIn a previous post you brought up the Full Faith and Credit Clause of the Constitution to smugly say that homosexual marriages done in Massachusetts (or wherever) would have to be recognized in other states. That's sort of the epitome of "cramming the issue down people's throats," wouldn't you say? And more close to the point, it is obvious from your various comments you are terrified of the people of Massachusetts determining for themselves that they don't WANT gay marriage. That's certainly "cramming the issue down people's throats" in my book.
Your whole argument is fascinating. Do the rest of us just get to ignore whichever sections of the Constitution we don't like? I could start with the tax code. Oh, and let's ignore that whole Full Faith and Credit thing, too, which completely eviscerates your other ideas.
Why do you hate democracy so much?
ReplyDeleteYou know, that last comment makes no sense unless you unmoderate the comment I left that you're responding to: it looks like you're responding to yourself when you ask "Why do you hate democracy so much"?
ReplyDeleteOf course, your response to my comment doesn't make much sense. You might as well as the Founders of the Constitution, with their concern for minority rights, why they hated democracy so much.
My comment always makes sense. It's the central premise of the thread. You hate democracy because you like law made by judges, at least in this instance. I, on the otherhand, think law made by the legislature and the people is superior due to the authority it derives from its power source.
ReplyDeleteLook, I understand why you and other pro-homosexual rights people like the judiciary so much. It's much easier to persuade 6 or 9 or 12 judges of your argument than a couple of hundred legislators or a few million citizens. What's truly sad is that I can see you arguing the exact opposite point if there were something that the people of a state wanted to vote on that you agreed with. That's hyopcrisy in action.
As for your comment about the Founding Fathers, they had a different view of the citizenry, who should vote and who should not. But every person who has the right to vote got it through legislation, not judicial fiat. This is why "Why do you hate democracy so much?" is relevant whether every individual screed you submit gets posted or not.
So, basically, in your view, anyone who supports equal civil rights for all and therefore believes that the majority should not be allowed to vote rights that the majority enjoys away from a minority group "hates democracy"?
ReplyDeleteInteresting. This is of course the concept of the "tyranny of the majority", which is widely seen by political thinkers from the 18th century onward (see James Madison writing in Federalist No. 10, or John Stuart Mill in On Liberty, or Alexis de Tocqueville in Democracy in America) as democracy's primary weakness, not, as you argue, something one must love in order to love democracy.
Yet another strawman argument, I see. Well, I guess that's the last refuge of scoundrels.
ReplyDeleteIt's amusing that you supposedly favor "equal rights for all," as long as that means not allowing "all" to exercise the basic right of a democracy: the right to vote.
It's interesting that this is the second time you have sought to "win" an argument by plucking two or three words out of context, and claiming that I meant by them something which, in context, I obviously did not mean.
ReplyDeleteI've done nothing of the sort. I asked you why you hated democracy. Your answer was that you didn't think civil rights should be subject to majority rule, even though every civil right granted has, in fact, been, at the very least, legislated as opposed to declared by judicial fiat. It is you who are hellbent on twisting words or avoiding arguments you don't like.
ReplyDeleteI've done nothing of the sort. I asked you why you hated democracy.
ReplyDeleteAnd I noted in response that what you seem to think one must love to love democracy has historically (referred to as "the tyranny of the majority") been seen as a serious weakness of democracy: the ability of the majority to vote civil rights that the majority enjoys away from a minority group.
You responded by claiming that I was not in favor of the right to vote - which was as absurd as claiming, as you did in a previous thread, that when I wrote that women are starved of resources, I was arguing that women are literally starving.
If you think that, to love democracy, one must love the ability of the majority to vote civil rights away from the minority, you are not in favor of the right to vote: until the black civil rights movement in the 1950s and 1960s, the right to vote was, in many states, one of the civil rights voted away from a minority group by a majority group.
If supporting equal civil rights for all, and being against the ability of the majority to vote civil rights that the majority enjoys away from a minority group, makes me a "process liberal", then I'm proud to join such "process liberals" as John Stuart Mill and Martin Luther King. Thank you for the compliment: I'm in good company.
You need to go back and read the Constitution and stop making such ignorant statements.
ReplyDeleteThe 13th, 14th, and 15th Amendments to the Constitution are what guaranteed the civil rights of black people in this country. In order to do that, majorities of the House and Senate had to vote for them, they had to be signed by the President AND ratified by two-thirds of the states. THAT is majority rule.
The Jim Crow era came about because the Supreme Court decided that it was perfectly all right to have separate facilities for whites and blacks. That lead to increasingly restrictive laws based on that ONE case.
Please stop responding on this thread. You've said everything you want to say. You're willfully denying history by distorting and ignoring what the Constitution is and was about. You quote the Federalists argument about a tyranny of the majority but fail to acknowledge the majoritarian nature of the government of the United States.
Civil rights by judge is tyrannical. You just happen to agree with what the judge is saying this time. That is despicable.