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Massachusetts loses title as "gay Vegas"

Ever since the Massachusetts Supreme Judicial Court, by a vote of 4-3, decided that gay marriage was legal in the Bay State, opponents have struggled for ways to put a check on the policy. They've held petition drives for a Constitutional amendment (stymied by more legalistic maneuverings), they've threatened to remove the judges (stymied by political maneuverings), and they've poured over and over lawbooks to find some way to check the judges' decision.

One tool they discovered was a law nearly a century old, crafted to fight inter-racial marriage. Under that statute, no marriage performed in Massachusetts was legal if it was illegal in the couple's home state. The sole exception was if the couple firmly declared their intention to move to Massachusetts. Otherwise, no couples could evade their home state's laws by coming to Massachusetts, getting married, and returning home trusting that the Full Faith And Credit clause of the United States Constitution would force their home state to recognize their union.

When the law was brought to Governor Mitt Romney's attention, he wasted no time in sending out a letter to town clerks across the commonwealth reminding them of the law, and directing them to follow it. This sent up a huge uproar among the pro gay marriage forces, who said the law was "outdated" and "racist" and "bigoted" and should be ignored. And if it couldn't be ignored, it should be challenged in court. After all, the courts had been their friends when they made their gay marriage ruling in the first place. (Apparently the notion of simply repealing the law was too much work for them.)

Well, if there's one lesson to be learned here, it's that trusting a Massachusetts politician is almost never a good idea -- and Supreme Judicial Court justices are as political as they come. (Chief Justice Margaret Marshall is married to New York Times columnist Anthony Lewis.) And in a surprise move, the justices voted 6-1 to uphold the law.

Again, let me reiterate my support for gay marriage as an institution. But I still believe that it should be done RIGHT -- through legislative action or public referendum, not by judicial fiat. It is my firm belief that such fundamental changes to our social structure should be done with the consent of a majority of the people, or they will be doomed to failure. In fact, I think that in the long term, events like the Massachusetts Supreme Judicial Court's actions will hurt the cause far more than they will benefit. We are seeing precisely the public backlash against "judicial activism" I feared. Further, by constantly eschewing legislative or public means of achieving their goals and instead resorting to the courts, the people leading the movement are expressing their fundamental distrust of the public as a whole.

The law, right or wrong, exists. And it should be followed until it is changed. We have numerous means to change the law available to us, and we should use them, or simply live with the laws as they are. This principle stands regardless of the particulars -- whether the laws cover marriage, immigration, or lying under oath about oral sex.

Otherwise, we are not a nation of law, but one of the anarchy of convenience and license. And history has seen far too many of those -- they're the societies that are always referred to in the past tense.


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Comments (16)

Just checking: Massachusset... (Below threshold)
meep:

Just checking: Massachussetts has a way of repealing old laws that become obsolete, right? They've got a legislature, right?

I did hear about trying this in court, but I didn't hear about any of these activists try to get the MA legislators to repeal the law regarding marriage for out-of-staters. Or trying to get pro-gay marriage pols elected to the MA legislature. Maybe they did try the normal (well, used to be normal) route for changing the law, but I never heard about it.

oh but meep, if they did it... (Below threshold)

oh but meep, if they did it the democratic way, they'd have to find candidates with the courage of their convictions! It's so much easier to shop for a Dukakis-appointed judge to stretch the meaning of words.

Who cares if they get marri... (Below threshold)

Who cares if they get married? I can't believe the crap that people get worked up about. I am conservative but just have no idea why everyone gets so torqued up about gays and gay rights. I guess my years in Long Beach living next door to a Lesbian couple and having a gay mailman made me a little more tolerant. At the end of the day they were good neighbors and friends.

Gay marriage? Sure no prob... (Below threshold)
LJD:

Gay marriage? Sure no problem.

Gun ownership? What kind of deviant are you?

At the end of the day th... (Below threshold)

At the end of the day they were good neighbors and friends.

Which is nice, but laws have to be based on principles, not personalities.

The law, right or wrong,... (Below threshold)
sean nyc/aa:

The law, right or wrong, exists. And it should be followed until it is changed. We have numerous means to change the law available to us, and we should use them, or simply live with the laws as they are. This principle stands regardless of the particulars -- whether the laws cover marriage, immigration, or lying under oath about oral sex.

but not eavesdropping on American citizens. That law can be disregarded.

And please don't give me the "inherent authority" excuse. Article I, section 8 says Congress can do the following:
1) To make Rules for the Government and Regulation of the land and naval Forces; and
2) To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In other words, Congress can modify or focus the powers of other branches, including the military, but removing said powers would be found unconstitutional. FISA fits that description: it does not stop the Executive from monitoring foreign surveillence, but it does tell the Executive the manner in which he must conduct it (ie with Judicial oversight).

[email protected] sean nyxc/... (Below threshold)
ed:

Hmmmm.

@ sean nyxc/aa

In other words, Congress can modify or focus the powers of other branches, including the military, but removing said powers would be found unconstitutional.

Frankly there is so much that is completely wrong in your comment that the only thing that actually IS correct is your name.

1. The military isn't a *BRANCH* of the federal government.

I.e. it doesn't hold an equal position with Congress, it's a subordinate agency. The BRANCHES of the federal government are Congress, Executive and Judicial. The military isn't included anywhere in there.

2. Congress has the ability to pass laws. Congress does NOT have the ability to pass a law that VIOLATES or NEGATES any provision in the US Constitution.

3. The Article II powers of the President, you know the EXECUTIVE BRANCH, give the President authorities that Congress CANNOT simply modify or legislate away.

Frankly I'm astonished at the boundless energy of your ignorance.

Maybe the whole answer to t... (Below threshold)
Matt:

Maybe the whole answer to the Gay Marriage thing is for states to stop regulating marriage.

Why do we allo them to do that?

The state should not be allowed to "Grant" permission to get married. I didn't have to ask my parents permission, I shouldn't have to ask the states permission.

At most, the state should just provide recording service to the personal act of two people entering in some type of living contract together.

duhhh: @ ed1. T... (Below threshold)
sean nyc/aa:

duhhh: @ ed

1. The military isn't a *BRANCH* of the federal government.

You are right and I never meant for what I wrote to be interpreted that way. Maybe I should have said "as well as the military" instead of "including the military". And you pointed out that it is a subordinate agency, to both the Executive and Legislative, so that does not change the fact that Congress can pass laws which affect the military.

2. Congress has the ability to pass laws. Congress does NOT have the ability to pass a law that VIOLATES or NEGATES any provision in the US Constitution
3. The Article II powers of the President, you know the EXECUTIVE BRANCH, give the President authorities that Congress CANNOT simply modify or legislate away.

To address 2, I said, and most people agree, FISA does not violate or negate any provision of the US Constitution. If it were unconstitutional, the administration should say so and have it taken off the books instead of praising it as they did up until the existence of the warrantless program was revealed.

Finally, 3 is just wrong. As I stated earlier, Art. 1, Sec 8 says Congress have the power:
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Did you read that? let me show you again: all other powers vested by this Constitution
Now they cannot take legislate away a constitutional power, but they most certainly can modify how it is enacted through the laws they write. If that modification goes to far, that can be determined by the Judicial branch, but saying the Congress cannot modify powers granted by the Constitution is taking away one of their Constitutional powers, which is unconstitutional. QED.

Sorry, I have to disagree w... (Below threshold)
Scotty:

Sorry, I have to disagree with those who believe that anything goes or should go as far as marriage is concerned. This, of course, is a slippery slope: first we have gay marriage then polygamy (and in polygamy we often see underage marriage sooo...), next comes marriage at any age, between any sex and finally any species.

Mr. Jones and Billy Goat Gruff was a nice couple that lived next door. Oh at first I was disgusted by the braying sounds from next door, but seeing their love made me realize what a hatemonger I had been. My tolerance grew and grew over the years.

While I might be persuaded that the "State" should just get out of the business of regulating marriage, we have to ask is there some benefit to society for the "State" to condone marriage of a certain stripe. On the other hand, we may ask what benefits do gay marriage or polygamy or any other marriage arrangement provide for the society at large? I fully understand the benefit to the parties involved but this is not a societal benefit that needs "State" involvement. And all of the personal party benefits can already be obtained through legal channels already (powers of attorney, wills, deeds, contracts, etc.) and do not call for a marriage contract.

In summary, I believe that "Marriage between a man and a woman" is the only type of marital arrangement that calls for "State" regulation.

Those Jones-Gruff kids were really ugly though.

so you don't get picky, let... (Below threshold)
sean nyc/aa:

so you don't get picky, let me revise the last sentence slightly. instead of:
"but saying the Congress cannot modify powers granted by the Constitution is taking away one of their Constitutional powers, which is unconstitutional"

it should say:
"but saying the Congress cannot modify powers granted by the Constitution through the laws they enact is taking away one of their Constitutional powers, which is unconstitutional".

I sincerely apologize for this grievous error.

All of the persona... (Below threshold)
Alex:
All of the personal party benefits can already be obtained through legal channels already (powers of attorney, wills, deeds, contracts, etc.) and do not call for a marriage contract.

That is not true. For example, you are not allowed to sponsor anyone for U.S. residency unless they are a blood relative or a legal spouse. I personally live outside the U.S. because the laws have forced me to choose between my country and the person I want to spend the rest of my life with.

[email protected] sean nyc/aa... (Below threshold)
ed:

Hmmm.

@ sean nyc/aa

sigh.

1.

To address 2, I said, and most people agree, FISA does not violate or negate any provision of the US Constitution ...

It does not violate *only* within the *restrictions* of it's authority which are less than the inherent Consitutional authorities that the President has to defend the country.

The problem you're having sean is that you think that Congress is the pinnacle of authority. It's not. There are three equal branches in the federal government. That means that the Executive branch has *equal* authority to Congress, but within mostly different spheres. Congress has the absolute authority to tax and allocate money. The Executive branch does not and must work within the fiscal means allowed by Congress. Congress has no authority over the military beyond that of the purse strings, this is the balliwick of the Executive branch.

So yes the FISA court has authority right up until it hits the brick wall of the Executive branch's authority in which case the Executive branch's authority trumps the FISA court which only has delegated authority given to it by Congress.

Is this becoming clearer?

2.

inally, 3 is just wrong. As I stated earlier, Art. 1, Sec 8 says Congress have the power:
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."


Did you read that? let me show you again: all other powers vested by this Constitution
Now they cannot take legislate away a constitutional power, but they most certainly can modify how it is enacted through the laws they write. If that modification goes to far, that can be determined by the Judicial branch, but saying the Congress cannot modify powers granted by the Constitution is taking away one of their Constitutional powers, which is unconstitutional. QED.

Christ on a Crutch.

A. the "foregoing" powers are those enumerated in the list of actions, powers and duties that precede this section.

B. That section doesn't give Congress ultimate power over everything and everyone. It doesn't give Congress the right to take away powers or modify them at will.

All it does is enjoin Congress to pass such laws that make execution of such powers both possible and legal. It does NOT GIVE CONGRESS THE POWER TO SUPPLANT THOSE OFFICERS AND TAKE THEIR AUTHORITY AWAY ON A WHIM.

For Christ sake! What the hell do you think a Constitutional Amendment is for? Why even HAVE THEM if Congress can just wave a hand, pass a law and the whole damn thing is suddenly changed?

The goddamn section does NOT give Congress the authority to actually EXECUTE "all" of those "powers" that belong to the government or any of it's officers.

Good God it's like trying pound knowledge into a rock.

I can't find ANYTHING good ... (Below threshold)
JimK:

I can't find ANYTHING good in using a law specifically passed to prevent black people from marrying white people to accomplish the goal of keeping two gay people who share their lives as a couple from becoming legal.

Why are those who are supposed to protect freedom using pure, unadulterated racism to legally support ANYTHING?

arghhh @ ed (frustration, n... (Below threshold)
sean nyc/aa:

arghhh @ ed (frustration, not anger)

we could have this argument all day, just a difference of interpretation. However, the pounding knowledge into a rock feeling is mutual.

A few points.
1) Congress does have more than just power of the purse over the military. They can create the laws which regulate their behavior and have sole authority to declare war.
2) Your argument regarding where FISA stops and executive authority trumps is not convincing. The program (what we know about it) intercepts electronic communication between a foreign entity and one on American soil, possibly a US citizen. From what I understand of FISA, this is type of surveillence is covered by FISA. And FISA has been modified in the Patriot Act, so why hasn't it been modified to address this? And who determines the "connection" to al Qaeda, how many degrees of separation still constitute a connection? Has the program been abused? There are too many unanswered questions to just turn a blind eye and trust the administration when their behavior thus far has proven having such faith is foolish.
3) You're right that the passage from the constitution I've cited several times does not allow Congress "TO SUPPLANT THOSE OFFICERS AND TAKE THEIR AUTHORITY AWAY ON A WHIM", and that's not what I've been arguing. What I'm arguing is that Congress can regulate how such powers are executed. Take a look at FISA, Congress is not replacing NSA officials and replacing them with Congresssional staffers, nor are they saying who the NSA should potentially surveil. What they are saying is if you happen to surveil a US citizen, you must present that to FISA to prove there was reasonable cause to surveil them. Not an absurd (or difficult) requirement. And you can even surveil for 72 hours without a warrant making it even easier.
4) What still bugs me is that supporters don't even know what they're supporting. Granted critics don't know what we're opposing either. But all we ask for is an investigation so outside observers can weigh the merits and legality of the program (which if everything is good and proper, we can just move along) while supporters insist we disregard potential violations of our rights and the constitution. Who's position is more egregious?
5) Lastly, to answer your question about amendments. The Bill of Rights are an expression of what the Founding Fathers believed to be the universal principles on which our country should be founded. The rest of the amendments, I believe, are essentially laws which are widely accepted, but not necessarily in every state, making them an amendment forces states enforce them when otherwise they would not have; and to correct erroneous or outdated parts of the original constitution. Some laws could easily be made amendments, but that process is excessive and would demean the value of the amendments.

Sorry for the length.

Alex,Anyone can ap... (Below threshold)
Scotty:

Alex,

Anyone can apply for US citizenship even if single. So your argument doesn't quite work. While the US does give preference (i.e., shorter waiting time) to those who get married, that is only in keeping with the original premise that a married man and woman provide intrinsic value to society.

By the way, I'm having a hard time believing you're story of not being able to come to the US. Have you read the headlines lately? It appears that you need only go to the grand entry way to the US -Mexico- and walk right in. I hear you can apply for walfare on your way in. Good luck!




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