Paul Starr, editor of The American Prospect, has an interesting opinion article about the gay marriage controversy. He is asking the political (as opposed to legal) question of whether the Massachusetts Supreme Court's ruling may have made it less likely, not more, that there will be equal rights any time soon. His answer to that question is yes - and he may well be right. He contrasts what happened in Massachusetts with a neighboring state:
Meanwhile, New Jersey enacted a law allowing same-sex (and other) couples to enter into "domestic partnerships" that carry most of the rights and obligations of a marriage. The New Jersey statute isn't actually as broad as the Massachusetts civil-union legislation would have been. But it passed with little opposition, nobody is threatening to overturn it, and it represents a great advance for equal rights. Nothing prevents these provisions for gay couples from being expanded, perhaps eventually extending to same-sex marriage -- that is, as long as no amendment to the contrary gets adopted nationally.
By taking such a dogmatic position - civil unions are not acceptable, gays must be allowed to marry and to call it a marriage - the Massachusetts court guaranteed, as Starr notes, that there would be a major reaction from opponents and that they would strengthen the movement for a federal constitutional amendment reversing them. And as he points out, there is a precedent for this at the state level:
The contrasting developments in Massachusetts and New Jersey illustrate the risks of turning to the courts to leapfrog public opinion in a democracy. Even though courts may be called "supreme," the people can overrule them, and on same-sex marriage they already have. After supreme courts in Alaska and Hawaii approved gay marriage, constitutional amendments in those states overturned their decisions. In contrast, Vermont's highest court gave the legislature the option of authorizing civil unions, and that legislation -- signed by Howard Dean -- seems likely to survive.
Now, the Massachusetts Supreme Court was ruling on a legal basis, not a political one. Their job is to adjudicate the issue before them, not to plot strategy on how to achieve the desired political result of gaining equal rights for gays. But legal rulings have political fallout, and I think Starr has a point when he argues that more progress would have been made on behalf of gay Americans if this had been done step by step rather than by the single stroke of judicial fiat in that state. And he also has a point when he says this could very well backfire on those of us who advocate gay marriage:
The Massachusetts court decision couldn't have come at a worse time, reinforcing the president's argument for conservative judges and handing Republicans an election issue. If an amendment to the U.S. Constitution to ban gay marriage succeeds, the Massachusetts decision will go down as one of the great examples of judicial overreach in our history.
I hope he's wrong - but I'm not betting on it.
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