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The · Psychohistorian


On the Massachusetts Constitutional Amendment to Ban Homosexual Marriage

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In 2004, the Massachusetts supreme court ruled - rightly, in my opinion - that the Massachusetts constitution does not permit discrimination against homosexual couples when issuing marriage licenses. That made Massachusetts is the only one of the United States that allows homosexual couples - two men or two women - to marry.

A significant number of people objected to this conclusion. Since the conclusion was based on the Massachusetts constitution, they decided they needed to amend it. The constitution has several avenues for amendment, giving differing amounts of power to the citizens and the legislature. They chose the one that involves the most work on the part of the citizens, but allows the legislature the least ability to intervene.

The process is as follows: first, they must gather a number of signatures in support of the petition greater than three percent of the voters in the most recent gubernatorial election. This they did. Then, the legislature is required to vote on the amendment in two consecutive sessions. Given this number of signatures, the legislature can only change or vote down the amendment with a three quarters vote; it only requires one quarter of the votes for the amendment to survive. If this happens in two consecutive sessions, the amendment is put to a popular vote during the next general election, where it must receive a majority vote to pass.

The process that the proponents of the amendment are following is clearly intended by the constitution to permit a sufficiently concerned citizenry to overrule a recalcitrant legislature: it requires lots of signatures, but is very difficult for the legislature to subsequently block. Legislators, when sworn in, swear to uphold the constitution, which includes the requirement for them to hold a vote on such amendments. Despite this, some, such as governer elect Deval Patrick, advocated circumventing the constitution by refraining from holding a vote.

Mr. Patrick characterized his sentiments as a "question of conscience". The problem is, consciences are very subjective. One person's conscience may tell him that homosexual marriages ought not be prevented. Another person's conscience may tell him that he cannot suffer a witch to live. The whole point of having a government and a constitution is to prevent everyone's imposing their own arbitrary personal morality and "conscience" on everyone else. It seems particularly questionable for an elected official to put his own personal morality ahead of the governmental structures under which he was elected - and which he will presumably swear to uphold.

Fortunately, the legislators rejected Patrick's arguments and fulfilled their duty to hold a vote. The amendment, requiring 50 of 200 legislative votes to survive, received 61. If it receives the required legislative vote again next year, I look forward to the opportunity to help vote it down - without denying its proponents their rights to have brought the amendment to a public vote.
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On January 3rd, 2007 12:37 am (UTC), desireearmfeldt commented:
I have to say I agree. It's not noble to cheat just because you're a Good Guy; that means you can't argue against the Bad Guys cheating next time.
On January 3rd, 2007 01:53 am (UTC), (Anonymous) replied:
It's certainly not noble.

But it's also not clear to me that, in a general election, the constitutional amendment would fail.

In that case, I'm left with a choice to support the rules (that's what I agreed to do, right? I get sworn in as an elected official, so I have to support the rules, right?) or support what I think is a basic ethical issue.

I think I would still stonewall the amendment, even though that would be a most severe violation. On the one hand is my credibility: not at all to be thrown away lightly! On the other hand are fundamental rights for others.

I think I'd make that trade, but I'm not sure. To me, it's a leap of moral courage.

Yes, I realize this is very similar, if not exactly similar, to arguments The Other Side(TM) makes that greatly pisses me off.
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On January 3rd, 2007 01:53 am (UTC), dcltdw replied:
*harumpht*

I thought I was logged in. Apparently, I was not. :)
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On January 3rd, 2007 02:02 am (UTC), desireearmfeldt replied:
It is a hard choice. But what's at stake is more than just your credibility as a politician. It's your, I don't know, honor as a politician (if you want to look at it personally), or the fairness of the system (if you want to look at it globally).

Sometimes one has to stand up and fight for what one believes is right, even against the laws.

But the system is there to be fair and universal. Once you say "well, I can't accept this outcome, so I'm breaking the rules for the Greater Good," you're undermining the system and saying that it's OK not to play fair and follow the rules, on your (and therefore, anyone else's) personal judgement. As psychohist says, that's exactly what the system is supposed to be instead of.
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On January 3rd, 2007 02:57 am (UTC), twe replied:
Not to mention that it's unlikely either side considers themselves the Bad Guys, so justifying behavior on the grounds that you're the Good Guys goes nowhere.
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On January 3rd, 2007 04:21 am (UTC), dcltdw replied:
Right, I totally agree. I'm saying, in effect, "I'm willing to totally kill my political career for this", since, well, if my constituents don't agree with me, bang, game over next election. And prolly not so much luck in any future election, because regardless of district, all my opponent has to point out is that I was totally willing to flagrantly violate The Rules.

Hence "I think I'd make that trade, but I'm not sure. To me, it's a leap of moral courage." Like, if I were a career politican, would I want to both resign from my job *and* my career? Iiiiiiiiiiiiii dunno about that. I can understand why a lot of politicans would rather just duck than actually make a stand.
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On January 3rd, 2007 04:31 am (UTC), dcltdw replied:
actually, wait, i'm highly delusional. career politican? No, I wouldn't throw away my career on this. Tempted to, yes, but would I? No.
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On January 3rd, 2007 05:38 am (UTC), psychohist replied:
I think it's more than just honor as a politician. I think it's honor as a person.

Once upon a time, I took an oath to "uphold and defend the Constitution of the United States of America". When I took that oath, I didn't think of it as meaningless noise. I didn't think it meant "uphold and defend the Constitution as long as I don't disagree with it." I didn't think it meant "uphold and defend the Constitution because I'll get drummed out of the military otherwise." I took the trouble to actually read the Constitution and think about it - and think about all the ramifications as well, such as what I'd do if I were given a lawful launch order on a ballistic missile submarine - because I was giving my word. Maybe I'm hopelessly old fashioned, but if I'm not willing to do what I promise to do, I feel that I shouldn't give the promise in the first place.

Your point about undermining the system is also a good one, and I think connected. If we have honorable public servants, willing to put the interests of those they serve ahead of their own personal interests, we have a chance at good government. Once the people in power are willing tosubvert the system, it won't be long before what was once a government devolves into something more akin to an organized crime syndicate, where positions are simply about power rather than about civic duty.

That's why I was relieved that the legislature actually voted - and pleased that it did so in open session, to boot.
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On January 3rd, 2007 05:53 am (UTC), psychohist replied:
I'm not certain that the amendment would fail, either - especially since the popular vote at the end is a simple majority. That's probably why the Massachusetts constitution has been amended so many times - 120 amendments so far.

On the other hand, I'm not completely certain that I'm right, and that the proponents of the measure are wrong, either. I am certain that it's wrong to ignore their arguments without giving them a fair hearing first. Who knows, maybe if we started listening to their concerns, they would be more willing to listen to us in turn.
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On January 3rd, 2007 02:53 pm (UTC), fernbridge replied:
Don't panic
Last I heard, polls stated that the majority of people in Massachusetts support gay marriage. The people backing the ammendment are also banking on the fact that they believe they can change public opinion on the matter as well. They feel they can do this because they do believe that they are the good guys. I believe they are mistaken.
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On January 6th, 2007 08:03 am (UTC), dpolicar replied:
Re: Don't panic
Or they're banking on being able to get a larger percentage of their minority to the voting booths than their opponents, which historically they've been quite successful at.
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On January 3rd, 2007 04:25 am (UTC), enugent replied:
But it's also not clear to me that, in a general election, the constitutional amendment would fail.

It's not clear to me that this is a good reason to try to circumvent the process, even though I agree with you on the political/ethical issue. If the citizens want it badly enough to go through all the hoops that they have to go through to get it passed, then I think you have to work within the system, not outside it - by campaigning against the measure with the legislature and with the people. If it needs 50 votes to pass next time, and it only got 61 this time, there's a reasonable chance it can be defeated in the legislature. If not, then get out the vote among the citizenry. If it passes, campaign to have it reversed.

Upholding the rule of law is itself an ethical imperative.
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On January 3rd, 2007 04:38 am (UTC), dcltdw replied:
Sure, but I think we're discussing (I'm not actually sure, since I'm somewhat sleep depped) relative weights of ethical imperatives.

To me, the greater imperative is to treat everyone equally, but if the cost is great personal loss (namely, my career), then I'd prolly chicken out (see above reality check), at which point, I'd hide behind the cloak of upholding the rule of law.

This is not to say that anyone who does this is morally inferior; I can understand why someone would, before this discussion ever started, first rate rule of law above anything else, and so I can understand why they'd opt for that.
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On January 3rd, 2007 05:33 am (UTC), twe replied:
See, I don't think the loss is one man's (or ten or twenty or a hundred people's) political careers. I think the loss is that when the situation is the citizen's group trying to get the ammendment passed over the objections of the majority legislature IS fighting for something you want/think is a high moral imperative, the legislature thwarts it by simply refusing to vote for it.
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On January 3rd, 2007 12:25 pm (UTC), dcltdw replied:
Sure, it sets precedent. That's a fairly potent argument.

But now we're back to relative moral weights.
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On January 3rd, 2007 04:19 am (UTC), treptoplax commented:
_A Man For All Seaons_
ROPER So now you'd give the Devil benefit of law!

MORE Yes. What would you do? Cut a great road through the law to get after the Devil?

ROPER I'd cut down every law in England to do that!

MORE (Roused and excited) Oh? (Advances on ROPER) And when the last law was down, and the Devil turned round on you-where would you hide, Roper, the laws all being flat? (He leaves him) This country's planted thick with laws from coast to coast-man's laws, not God's-and if you cut them down-and you're just the man to do it-d'you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake.

ROPER I have long suspected this; this is the golden calf; the law's your god.

MORE (Wearily) Oh, Roper, you're a fool, God's my god . . . . (Rather bitterly) But I find him rather too (Very bitterly) subtle . . . I don't know where he is nor what he wants.

ROPER My god wants service, to the end and unremitting; nothing else!

MORE (Dryly) Are you sure that's God? He sounds like Mo­loch. But indeed it may be God- And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly!
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On January 3rd, 2007 03:15 pm (UTC), treptoplax commented:
The other depressing thing about this is that it points out that the MA constitution is a mess. This is nothing more than a form of Pocket Veto, a procedure for which is in the 1789 US Constitution (if the President neither signs nor vetos a bill within 10 days, it becomes law automatically), but the goofs who wrote the MA constitution initiative procedure in 1910ish? apparently totally failed to deal with that case.
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On January 3rd, 2007 04:21 pm (UTC), psychohist replied:
I agree that the Massachusetts Constitution is a bit of a mess, but I think the procedure here is fairly clear:

"If a proposal for a specific amendment of the constitution is introduced into the general court by initiative petition signed in the aggregate by not less than such number of voters as will equal three per cent of the entire vote cast for governor at the preceding biennial state election, or if in case of a proposal for amendment introduced into the general court by a member of either house, consideration thereof in joint session is called for by vote of either house, such proposal shall, not later than the second Wednesday in May, be laid before a joint session of the two houses, at which the president of the senate shall preside; and if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from time to time until final action has been taken upon all amendments pending, the governor shall call such joint session or continuance thereof."

There's no option to avoid holding the joint session and the vote. You could argue that the system would be more robust if there were automatic passage if no vote were held, but there's a tradeoff there: by avoiding a vote, the legislators could avoid going on record as supporting or opposing the measure, decreasing their accountability to their constitutents.

At some point someone has to be trusted to do what the constitution says. Ultimately someone sends the ballots to the printer, and has to be trusted to actually put referendum measures on the ballot.
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On January 5th, 2007 03:26 am (UTC), arcanology replied:
Heh, I volunteered to post up the laws passed on night in... what was the name? The French Revolution assassin game. That being the last part that made them legal. Of course, despite being on the government I didn't much like the laws, and went right home instead.

But I was an anarchist in that game. Real Me would probably have posted them.
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On January 5th, 2007 05:00 pm (UTC), fredrickegerman replied:
Reign of Terror.

But of course, those rules were designed to encourage political chaos---that being an important part of the game. You want to discourage gaming the system into chaos in real life.
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On January 5th, 2007 03:05 pm (UTC), jaedian replied:
"the governor shall call such joint session or continuance thereof."

Doesn't that allow the governor to stall the vote as well, by granting a continuance repeatedly?

I suppose that means two branches of government have to conspire though. But still it sounds like someone HAS to step up and force the issue, as opposed to having some sort of default that calls the question.
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On January 5th, 2007 03:27 pm (UTC), psychohist replied:
The governor is calling a continuance of the joint session, not of the vote. Also, he only does so until the vote ("final action") has been taken - once that's done, of course, there's no point in continuing the session. The governor doesn't have any real discretion here; that provision just resolves situations where the two houses can't agree on a time - for example, the house says "we only meet in the mornings" and the senate says "we only meet in the evenings".
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On January 5th, 2007 02:21 am (UTC), psychohist commented:
Someone else pointed out that there is a second constitutional amendment that the legislature hasn't bothered to vote on. Ah well - I was actually starting to think that some politicians might have some independent concept of duty, but maybe it's only in cases where that duty is very specifically pointed out to them.
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On January 7th, 2007 02:57 am (UTC), firstfrost replied:
I think this happens fairly regularly, actually. A couple of years ago, another group took their case of "We had a petition and the Legislature dumped it on the floor" (was it about the Turnpike Authority not disbanding? My google fu is weak over a dialup connection...) to the SJC and they said the same thing they said this time: "Yes, the Legislature is supposed to do that. No, we don't have any way of making them." But that time it just died.
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On January 8th, 2007 06:49 pm (UTC), psychohist replied:
I remember there were attempts to disband the Turnpike Authority. I could only find this article on it:

http://graphics.boston.com/news/politics/campaign2000/news/Turnpike_foes_hit_the_road+.shtml

According to that article, there was an earlier initiative to simply get rid of the Authority that was struck down in court because it didn't provide a way to pay the bondholders.

The Massachusetts Constitution prohibits petitions from doing certain things. In particular, they can't amend certain listed basic rights, including the takings clause - prohibiting private property from being taken for public use without compensation - and they can't appropriate funds. Cancelling the bonds would violate the takings clause, and paying them off from the treasury would violate the appropriation limitation.

I vaguely remember when Governor Weld initially tried to get rid of the turnpike authority, they somehow managed to float a new bond issue that protected them; maybe that involved the same logic.

According to the article at the link, a revised proposal that met constitutional muster was going to be voted on. I don't remember if it actually was voted on, but it strikes me that the revised proposal was unlikely to pass - it made turnpike tolls tax deductible, which would really be attractive only to heavy users of the turnpike, and removed vehicle excise taxes, which would have been problematic for local governments which relied on those taxes.

Of course, you might be remembering a completely different amendment that didn't catch my attention enough for me to remember it.
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On April 5th, 2007 04:34 pm (UTC), psychohist commented:
Update
Background for this update:

The Massachusetts Supreme Court has ruled that homosexual marriages can't be banned in Massachusetts for Massachusetts couples. However, the Court has also upheld the constitutionality of a law that prohibits Massachusetts marriages of out of state people where those marriages would be prohibited in their home state, and that declares such marriages null and void.

Patrick wants to repeal that law. Okay, fine, procedurally that's the right way to do things.

However, there were also 26 homosexual marriages of out of state couples performed in contravention to that law, which were not registered. Patrick is going to register them anyway, in contravention to the law, which seems to me a bad thing for a government official to do.

It also seems rather unwise, since it will only confuse the issue of whether the couples in question are married or not.
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