November 20, 2006

Mitt Romney versus the Massachusetts legislature.

It's a big gay marriage showdown.


MadisonMan said...

It would be nice if politicians could use hope to win votes, instead of division. So the Legislature can vote on it, and Romney can veto it, and the Religious Right will shower his Presidential Run with dollars. Wake me up when the theocracy is over.

(Am I too cynical?)

Edward said...

While Ann’s phrasing – “big gay marriage showdown” – certainly makes this news story sound exciting, I really doubt that this particular conflict will be anywhere near as exciting as that.

The decision by the Massachusetts state legislature to recess rather than adjourn seems to deprive Romney of all legal means to force it back into session.

And the Massachusetts Supreme Judicial Court has once before refused to force the legislature back into session to consider the anti-gay marriage amendment. This happened about a year ago.

All this news story really shows is Romney’s desperate attempt to pander to the Republican Party’s evangelicals in his pathetic effort to win the presidential nomination.

If someone wants to see a genuine “big gay marriage showdown,” they should read any of the better Althouse threads on this subject.

Ann Althouse said...

Edward: I just wrote "big gay marriage showdown" because the story was too boring to summarize or quote. I tried to write a post with the substance of the dispute in it, but it was too tedious! It seemed important enough to mention, while being curiously dull to describe.

rightwingprof said...

I don't see how "gay marriage" is the issue. Democracy is the issue -- or whether the legislature can prevent the people from voting.

Gay marriage has nothing to do with it. It could as easily be about trash collection, and the issue would be the same.

MadisonMan said...

Everyone is in favor of Trash collection.

Bruce Hayden said...

Yes, Romney is pandering to the right in his presumptive run for the presidency. BFD. He still has a good point - which is that the proper place for this is either at the legislature, or on the ballot.

I very much disagree with Solomon in his claim that "One of the tenets of the Constitution is that you do not put the rights of a minority up for a popularity contest". When you bypass the electorate through judicial fiat to redefine a millenia old cultural norm, you are just asking for trouble.

What I see happening here is a hardening of positions, akin to what we saw with Roe v. Wade, only arguably worse. As evidenced by the AZ (of all places) vote, there has been movement towards acceptance of domestic partnerships in particular, and, ultimately, probably, gay marriage. But Solomon is asking that it be shoved down the majority's throat, and that all that will do, esp. if successful, is reduce the public acceptance of it.

Bruce Hayden said...

I also don't like legislatures depriving the people of a vote on things. Not nearly as much as I dislike the judiciary doing it, but still, in my view, not good.

reader_iam said...

Everyone is in favor of Trash collection.

Ah, but should they be? Perhaps if curbside trash collection didn't exist, people would produce less! Couldn't one argue that, under the law of unintended consequences, our providing such services has, over the years, led to bad, self-indulgent habits resulting in upticks in trash-generation and overfull landfills? (Oh, don't bore us with the causation/correlation thang.)

As for slippery slopes: c'mon! First there was street cleaning, then there was curbside collection (or maybe those first two were reversed--whatever; it's only a detail) and now we have curbside recycling.

What next?!

Brent said...

I'm certainly not a legal scholar, but I just spent the last thirty minutes reading the Massachusetts Constitution on all things re: referendums and, while the Governor
seems to be correct, the part that scares me is this part:

Subject to the veto power of the governor and to the right of referendum by petition as herein provided, the general court may amend or repeal a law approved by the people.

What does THAT mean?

reader_iam said...
This comment has been removed by a blog administrator.
The Drill SGT said...

MadisonMan said...
Everyone is in favor of Trash collection.

You've obviously never seen a big city garbage strike with the union on one side rooting for garbage to pile up and the Mayor trying to force the union back to the table or to work with the public in the middle.

that stinks

reader_iam said...

Sorry--when a door opens that wide, I'm irresistibly drawn to walk through it.

A Character Flaw.

Edward said...

We live in a representative democracy. All the great nations of this earth are representative democracies.

One of the principles of representative democracy is that elected legislators are free to vote their conscience on momentous issues.

You conservatives should go back and read your Burke to re-learn this lesson. Read, for example, his “Speech to the electors of Bristol.” In that speech, Burke makes this point crystal-clear.

A majority in the Massachusetts state legislature clearly believes that their conscience will not allow them to approve this constitutional amendment referendum.

We should all respect them, admire them, and even praise them for following their conscience in such a principled way.

Democracy is still functioning perfectly well in Massachusetts. At the next election, the citizens of that state can replace their state legislators with people vehemently opposed to same-sex marriage and determined to amend the constitution.

That probably won’t happen, however, because a majority of the people in Massachusetts already seem to support same-sex marriage and don’t want to change their constitution.

Paul Zrimsek said...

Brent: the "general court" is for some reason the official name of the Massachusetts legislature. The judges you're worried about are called the Supreme Judicial Court.

The Drill SGT said...

Edward said...
We live in a representative democracy. All the great nations of this earth are representative democracies.

One of the principles of representative democracy is that elected legislators are free to vote their conscience on momentous issues.
That probably won’t happen, however, because a majority of the people in Massachusetts already seem to support same-sex marriage and don’t want to change their constitution.

1. As I understand the question, the legislature is refusing to comply with the commonwealth constitution and put an initiative on the ballot that went through the petition/signature process. They are acting extra-legally to avoid fulfilling their oaths of office.

2. The Court rather than make the legislature comply with the law, creates its own laws by fiat and imposes them on the people

3. The Governor is trying to support the petitioners and get the legislature to "NOT PASS A LAW", just put it up for a vote.

So, if the people are in favor of same sex marriage, why does the legislature have to keep it from a vote and why does the court have to impose it?

whether you support SSM or oppose it, you should abhor what the legislature is doing.

what am I missing?

Internet Ronin said...

And here I thought this was a pretty basic constitutional issue. The tyranny of the majority in Wisconsin is to be despised but that of the Massachusetts legislature, which declines to do its constitutional duty, is a profile in courage.

Live by the sword. Die by the sword.

Kirby Olson said...

I was in Gloucester, Massachusetts two summers ago and to my surprise the local paper's editorial violently denounced gay marriage, and the activist judges that had installed it without a vote.

Also in the same paper was an article about how the Reverend Sun Yung Moon had all but taken over the sushi industry nation wide.

I was walking through the town as if walking through the Charles Olson Maximus Poems.

Joe Baby said...

I wouldn't go too far in reading the tea leaves of the AZ vote as approving domestic partnerships for gays and lesbians.

The "No on 107" did a good job of focusing on benefits, but they showed straight couples in all their ads, spoke about kids losing benefits, and in a bizarre argument, said that seniors would lose their social security benefits.

Even with all that subterfuge, it only went down by 3 pts.

MadisonMan said...

reader_iam -- I've often thought, as I put out the one solitary bag of garbage my family of four generates weekly, and look at the huge bins my neighbors generate, that the city of Madison should pass out 104 garbage bags to each house per year, and only collect garbage that is in those bags. And if you need more bags, you have to pay substantial amounts for them.

This is one reason I will never be mayor.

Edward said...

Drill Sgt: The three likeliest explanations for why the state legislature refused to send the referendum to a vote of the people are the following:

1) They truly believed they were acting constitutionally by recessing without voting on this issue. The Supreme Judicial Court will probably agree that their decision to recess was within the prerogative afforded them by the state constitution.

If the framers of the Massachusetts constitution wanted to bypass the state legislature completely after a certain number of signatures were gathered for a popular referendum, they could have done that.

But they didn’t. Clearly the state legislature has the constitutional leeway to block an issue like this from going to a popular vote, if their conscience tells them they must.

2) The majority in the state legislature obviously believes that the rights of a minority, particularly a minority that has historically been the victim of irrational animosity, should not be put to a popular vote.

3) While most people in Massachusetts probably already support gay marriage, the campaign over a popular referendum on this issue would certainly be costly and very divisive. The state legislature probably wants to spare their state that horrible social and economic cost.

MadisonMan said...

Joe Baby, the anti-Gay marriage subterfuge is that if gays can have a govt-sanctioned civil union, my marriage (or yours) will somehow suffer. Each side spins.

amba said...

Reader, LOL!

It's all about what society labels "trash" anyway, eh?

Joe Baby said...


I don't think I've ever heard a gay marriage ban advocate say that allowing civil unions and the like would hurt a particular marriage. (To the contrary, I hear this from those who are against such amendments.)

In general, those who are for such amendments have said that these arrangements would continue to weaken marriage as an institution, therefore fewer folks in successive generations would enter marriage, etc.

Fitz said...

You can game any system. As a lawyer, its more than possible to game the legal system. Usually if the Judge sees the opposition doing it, he has broad powers to stop them * declare their actions invalid.

It’s more than interesting to note the fact that this exact same thing occurred BEFORE the MSC ever ruled for gay “marriage”. The people are not stupid and they saw it coming down from the elites. The convened a constitutional convention in order to further define marriage and the leaders in the legislature shut it down in this same manner.

The procedure to amend a constitution is not an easy one- taking two consecutive votes of two legislatures to even get on the ballot. Calling a quorum and convening it in a manner so the chief executive of the state cant call you back into session is about the most obvious, blatant disregard for basic procedure one could hope to imagine.

Their legislators – they vote, that’s their job, get on the record and vote.
Why the fear?

As they say…
You’ll know them by their tactics.

Anonymous said...

Edward:Clearly the state legislature has the constitutional leeway to block an issue like this from going to a popular vote, if their conscience tells them they must.

Clearly? From Romney's statements, and I think we can rely on the fact that he quoted accurately: "The constitution quite plainly states that when a qualified petition is placed before them, the Legislature 'shall vote.' It does not say 'may vote,' or vote if procedures permit a vote, or vote if there are enough of the members in the chamber. It says, 'shall vote.'"

"Shall" is not "may." It's not up to the individual legislators and their consciences. The petition is qualified, and the legislators are therefore obliged to vote.

MadisonMan, Joe Baby was referring to the specifics of the "No on 107" campaign, not to the generic spin you hear around this issue. Opponents to Prop 107 didn't say anything about marriage, straight, gay, or otherwise. They focussed on the loss of benefits that could occur if the measure passed. It was a well-run campaign, but it succeeded precisely because it didn't even mention same sex marriage!

Edward said...
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Edward said...

Joan: All of this has to be understood in terms of the basic rules of order that the legislature follows. The rule allowing the legislature to recess without voting on the referendum is presumably constitutional.

The state legislature could interpret what they are doing as deferring or postponing a vote on the referendum to some indefinite point in the future.

It doesn’t need to be interpreted as a definitive refusal to vote on the referendum.

A delay, even an indefinite delay, is probably constitutional and is clearly dictated by the conscience of a majority of the legislators, which is admirable.

Fitz said...

“We live in a representative democracy. All the great nations of this earth are representative democracies.

One of the principles of representative democracy is that elected legislators are free to vote their conscience on momentous issues.’

Exactly – as Drill Sgt. Already pointed out however….. What vote? It’s precisely what their not doing…their NOT voting. The fear going on the record (for some strange reason) and by doing so are disenfranchising their citizens of their do process rights.

{I hope everyone realizes that there is a Federal cause of action in all this}

I further hope people realize that this talk of “you don’t put minority rights up for a vote” is utter drivel.

The 13th 14th & 15th Amendments were all put up to a 2/3 of the house and senate and ¾ of the States had to ratify them!

The same holds true for the 19th Amendment. Which means that Men voted (exclusively) to allow women the right to vote.
{& this took place AFTER the adoption of the 14th amendment and its Due process & equal protection clauses} Think about it?

Indeed every word of every State & the Federal constitution was voted on by the legislatures and ratified by the people.

The constitution does not protect “minority” rights (we are all a minority according to some criteria, and the construction of new minorities is a far to easy job) – No the constitution protects individual rights.

Every individuals right to (bear arms, own property, exercise speech, freely assemble, practice religion)

Historically the most important right is the right to VOTE!!! To be represented. That’s what this country is, an exercise in popular sovereignty.

Of course the elites in Boston know this, that’s why they don’t want a vote.
We spend 90% of our energy just trying to get them to play by the rules!
They know that also….
That way we never get to the real issue.
The importance of the foundational institution of marriage.

Revenant said...

Wake me up when the theocracy is over.

Calling a state a "theocracy" for failing to recognize gay marriage makes about as much sense as calling a state that DOES recognize gay marriage a "pederastocracy".

A theocracy is a state where religious leaders ARE the government. A democracy that happens to have a lot of religious people in it is not a theocracy.

Fitz said...

the measure also requires the support of at least 50 legislators in two consecutive sessions to qualify for a statewide referendum. On Nov. 9, legislators voted 109 to 87 to go into recess rather than vote on the gay marriage ban, all but dooming its chances of appearing on the 2008 ballot.

Romney said..

"The issue before us is not whether same-sex couples should marry. The issue before us today is whether 109 legislators will follow the constitution," declared Romney, promising to send the 109 lawmakers a copy of the constitution and their oath of office to underscore his frustration. "Let us not see the state, which first established constitutional democracy, become the first to abandon it."

AlaskaJack said...

If the people, the source of political power in a democracy, express their intention in a referendum to be allowed to vote on an important social issue and some of their elected representatives cannot in good conscience support their expressed intention to have a vote on this issue, then the only honorable thing for those representatives who are opposed the will of the people is for them to resign their office.

JorgXMcKie said...

It is arguments like Edward's that convince me that the Left cares for nothing but power. He refuses to recognize any power other than individual conscience.

Well, when the Devil turns on him, I wonder where he will hide?

Anonymous said...

He refuses to recognize any power other than individual conscience.

By Andrew Sullivan's logic, that makes Edward a true conservative. I'm sure he's thrilled.