Gay marriage and the fragile tyranny of the minority

In my posting on gay marriage yesterday, a few commenters questioned the sincerity of my belief in gay marriage, saying that subsuming it to public opinion gave me an “easy out.” That’s a valid question, and one I believe deserves a sincere answer.

My position is often stated in idealism — support for democracy — but is rooted in the deepest pragmatism.

The issue of gay marriage came up in Massachusetts several years ago, when the case that ultimately brought it about began wending its way through the court system. Many at the time saw just what a huge issue it would become, and tried to get the state Constitution amended to address it. Time and again the legislature used its power to block such moves. Even when the Supreme Judicial Court formally told them to “crap or get off the pot,” they evaded the issue. Many observers at that time strongly suspected which way the Court was going to come down saw that as a clear warning, but it was still ignored.

So the Court issued its landmark decision, and gay marriage became legal in Massachusetts.

And as predicted, the opponents of gay marriage were incredibly energized. They had just been handed a huge defeat. Four judges, with the complicit help of a few leaders in the legislature, had forever changed the nature of marriage in the Bay State. The pro-gay-marriage side had managed to change the law with the assistance of less than two dozen people (I’d estimate).

This was a tremendous victory for their side (the side I support), but it’s also incredibly shaky. The way the change came about was by four judges interpreting the state Constitution, and several lawmakers in key positions preventing the other side from fighting back. And opposing them are the three other judges on the Supreme Judicial Court, along with a tremendous number of ordinary citizens.

Citizens also known as “taxpayers” and “voters.”

They’ve been fighting back, and their weapon of choice is the ultimate “big gun” in state politics — a Constitutional amendment. If they can push through such an amendment, the court’s ruling will be struck down and the justices rendered powerless to rule otherwise. This would be a huge defeat for gay marriage, as it would set back decades of progress and be almost impossible to overrule.

The process to amending Massachusetts’ Constitution is spelled out here, but let me give you the relevant parts: any amendment proposed by petition has to receive the approval of at least 25% of the legislature in two consecutive sessions. The sole defense the pro-gay-marriage side has is to keep it from getting that vote, or preventing a vote entirely. And that depends on them keeping a leash on the legislative leaders — people that can be voted out of office quite easily. And if the leaders themselves can’t be kicked out of office, then they can at least be defeated in their leadership roles.

The people who oppose gay marriage know this, and they’re acting. They’re lining up opponents for the leaders in their races, and they’re working to get other legislators elected as leaders within the House and Senate. If they’re successful, then that Amendment will pass, and gay marriage will be dead in Massachusetts for the foreseeable future.

At the same time, they keep electing governors who oppose gay marriage. And it’s the governor who nominates judges to the Supreme Judicial Court.

So yeah, I support the democratic principle here, out of idealism. But also out of sheer practicality — the way the system works, if enough people are sufficiently pissed off about the way gay marriage was instituted in Massachusetts, they have the means to kill it now and for a long time to come. All they need is the proper motivation — and they’ve got that in spades.

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133 Comments

  1. Mark October 8, 2005
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