February 25, 2004
Gay Marriage and the FMA
Okay, I want to first preface this by saying I am in favor of gay marriage. In the past I have said I don't care, but I hope that it was clear I don't care what people want to do in terms of marrying another person. The implication being I'd support gay marriage. In other words, I'd support it at the ballot box. I'd support the candidate who favors gay marriage (all other things being equal--i.e., I probably couldn't bring myself to support Al Sharpton even if he was strongly in support of gay marriage).
However, I think those who are objecting to the Mass. Sp. Ct.'s behavior and Bush's support for the FMA are missing part of the argument. Robin Roberts has argued rather convincingly that the antics is MA are judicial activism. I'm not sure I agree with him 100% yet, but he has put forward some strong arguments.
The problem with judicial activism is that it has the potential to re-shape the Constitution not to suit the beliefs of the people, but to the beliefs of a handful of judges and attorneys. Granted it could be that the beliefs of these judges and attorneys are shared by every single person in the U.S. (although this is extremely unlikely...especially given the adversarial nature of our courts, i.e., there has to be somebody arguing the other side who disagrees). So even though the gay marriage issue is a just one (in my view at least), obtaining that goal via judicial activism circumvents the democratic process and denies a voice to those who are not the judges and lawyers involved in the case. This can be bad for a society, IMO. Think of the Roe v. Wade decision decades ago. This decision has had a lasting impact (for the worse, IMO) on our society. Our society is divided on this issue, and it is used ot hold up legal appointments and add additional stresses on the legal system. For a country that has as one of its central pillars the rule of law the latter is not good.
So when Jeff Jarvis writes,
Good God, you harp against those who would extend the Constitution to mold it to their beliefs and here you vow to amend it to do just that. You say you want less involvement and interference from government and yet you bring government into the bedroom. You talk about bringing the people together and yet you will set upon a long war to drive us apart.
This misses the above point. It isn't simply the molding of the Constitution, but how the Constitution is molded. By supporting judicial activism now (if it is indeed judicial activism) this opens the way for future judicial activism that may be much more onerous. Further, it leaves the molding and shaping of the Constitution to our beliefs up to a handful of judges and lawyers. We do have a way of changing the Constitution, it is the Amendment process as laid out in the Constitution. This process encourages public debate on the change and can help change people's minds on a topic. Forcing a change down their throats via the legal system will lead to a hardening of positions, animosity, and resentment.
I think it is also worth while to remember that while people can be strongly in favor of gay marriage they can also strenuously oppose judicial activism. This does not make them fascists or homophobes. The above is not an unreasonable stance to take, IMO. It is basically a stance that says, "The ends don't always justify the means." Think of it this way. Rounding up everybody who is HIV positive and executing them would be one way to stop the spread of the disease and save countless lives. Does that end justify the horrific means? Granted the current issue is far removed from this extreme example, but perhaps the overall point that the ends don't always justify the means is lost in the less extreme nature of the current issue.
Now all that being said, I oppose a Constitutional amendment to ban gay marriage. I think placing that kind of bigotry into the Constituion is quite bad. I don't support it at all.
Link to Jeff Jarvis via Michael Demmons.
Posted by Steve at February 25, 2004 06:28 AM