January 3, 2006

Anti-anti gay marriage litigation.

A lawsuit to stop the anti-gay marriage amendment in Massachusetts:
The lawsuit, filed by Gay and Lesbian Advocates & Defenders, challenges a September ruling by state Attorney General Tom Reilly that found the amendment drive was legal.

That ruling allowed backers of the amendment to begin collecting signatures. They gathered more than 120,000 -- well above the 65,000 needed to get the measure on the 2008 ballot.

Gary Buseck, GLAD legal director, said the Massachusetts Constitution bars any citizen-initiated amendment that ''relates to the reversal of a judicial decision.'' Reilly should have blocked the question from going forward on those grounds, Buseck said.

The proposed amendment is designed ''squarely and solely'' to reverse the landmark 2003 decision by Massachusetts' high court that legalized gay marriage, Buseck said.


Bruce Hayden said...

This would really be scary precedent, and presumably the same court that found that right to gay marriage would be ruling on this. Not good.

The reason that I think that this is a bit scary is that it essentially puts the court above the people.

I also don't like this because it isn't that the amendment would directly overturn the ruling, but would indirectly do it through clarifying the present law.

downtownlad said...

Why is it scary? It doesn't put the courts above the people. It just clarifies how the petition process can work. Many states don't even have petition process. Should we consider those states "scary" since the people can't change the law via a referendum???? If the people want to change the law, they can always do so through the legislature.

The Massachusetts legislature can still pass an amendment to ban gay marriage. But what this lawsuit is saying is that this can't be done via the petition process.

I have no clue about Massachusetts law and who is right in this situation. But I completely fail to see how this is "scary".

downtownlad said...

And what if the petition process was trying to create a Constitutional Amendment that said "Christians couldn't vote".

Would it be "scary" if the courts said such an amendment could not be created via a referendum process???

Somehow I think you'd be singing a different tune if it was your rights that were affected and not gays.

RichC said...

Well, downtownlad, if you don't know anything about MA law, how about bothering to take some time to read the MA AG's take on the matter before lecturing us about what is and isn't "scary".

First off, GLAD's public spin is beyond silly, since if you took GLAD spin at face value, it would mean that virtually no amendment could be passed by initiative petition, since almost any constitutional amendment, no matter how minor, will necessarily reverse some judicial decusion.

Anyhow, here's the AG's view of the matter:
(and note that the MA AG is a Democrat and an on-the-record gay marriage supporter).

Pogo said...

What the left cannot accomplish by appealing to voters they move to enforce by judicial fiat.

As with abortion, gay marriage is the left's new idea of "the right thing to do", damn the consequences. And like abortion, forcing the US to comply with their views will result in chronic turmoil.

Leftists seem happiest telling everyone what to do, as if they were the only adults in a world of unruly children.

gj said...

Thanks to RichC for the link to the AG's letter. Here's a relevant quote:

To summarize briefly, you argue that the proposed amendment reverses Goodridge and therefore is barred by art. 48's provision excluding petitions relating to the “reversal of a judicial decision.” But the Supreme Judicial Court has clearly ruled that that phrase in art. 48 was used in a very special and limited sense, to refer to proposals relating to the “recall of judicial decisions.” “Recall of judicial decisions” was a proposal, made in 1912 by Theodore Roosevelt but widely rejected by 1918, that would have allowed voters to directly reject, as wrongly decided, state courts’ rulings that state laws were unconstitutional, and to put those laws back into effect.

But “recall” is very different from the process of actually amending the words of constitution, as the advocates of recall themselves recognized. Amending the words of the constitution does not require the people to say that a court’s decision was wrong and should be ignored. Instead, it changes the rules to be applied by the court so that future cases will turn out differently.

So it seems like GLAAD is arguing based on the text of the MA constitution without reference to the subsequent interpretation of that text.

They'll probably lose, but it's hard to fault them for trying. They are, after all, attorney's by profession, and the right to gay marriage is effectively their client. So they're just doing their job.

Palladian said...

"Nobody is going to force you, or your children, to do anything."

Well not yet anyway. This is what worries thinking people, the idea that judicial fiat necessarily outweighs democracy. I say this as a gay person, so don't bother with the "you're scared of gay people" line.

Sean said...

Well, Mary, in other countries people have been arrested and fined for expressing the opinion (usually based on Scripture) that homosexual activity is morally wrong. I suppose the next step would be to require churches to perform gay marriages. Will you guaranty, with your entire net worth, that nothing like that will ever happen in America?

Elizabeth said...

Do those other countries have written constitutions, with guarantees of free practice of religion? There's a lot of things we can do that other countries ban. Why is this different? How many people are arrested for speech in this country, anyway? There are religious interpretations in favor of slavery, and we generally abhor slavery, but we don't arrest Aryan Nation ministers for preaching that doctrine. Adultery is a regarded as a sin, but not a crime, and churches preach against it freely. We don't force churches to give communion to divorced parishioners; we can't even require a church to marry anyone, for any reason. A minister can turn down any couple based on any criteria. That's their right. This is just another argument meant to raise fears because there aren't any actual examples of how gay marriage will destroy civilization as we know it.

Mary said...
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