As the fight over gay marriage continues in Massachusetts, we find out that the proponents are bypassing the legislature and the people and going to the courts to get their way.
One of the things that helped keep gay people from all over the country flocking to Massachusetts to get married, and putting the “full faith and credit” clause to the Constitution to the test, was a previously-little-known 1913 Massachusetts law that said that a marriage conducted in Massachusetts that was illegal in the home state of one of the participants would not be valid. It was put in place as a stand against inter-racial marriages, but the law was never repealed.
So when a couple from Hart’s Location, NH drove down to Massachusetts to tie the knot, they were informed that since New Hampshire wouldn’t let Les and Ed conjoin, neither would the Bay State.
Yes, the courts do have the ability to strike down laws. But there are other ways — ways that depend on the will of the people. And if gay marriage is in any way going to succeed, it has to have the support — or at least the grudging tolerance — of a majority of the people.
Under our system of government, the three branches provide checks and balances on each other. When one branch is perceived as going too far, the others can act to stop them.
In Massachusetts, the governor can appoint successors to the judges making the unpopular rulings. The legislature can impeach and remove them from office. And in a further step, the people themselves can simply change the Constitution and re-write it to suit their beliefs, not those of the judges.
Such a move is underway right now. People are getting petitions signed to ban gay marriage, in backlash to the high-handed moves of the court and the outright obstructionism of the legislature. And, naturally, those two bodies are doing everything they can to hamper the petition effort.
It’s a tough call for me. On the one hand, I’ve long been a supporter of gay marriage. But I’m an even stronger supporter of democracy and the rule of law, and the side I support has abused that, while their opponents are acting in the truest sense of democracy.
I don’t think this will end up in a civl war or revolution in Massachusetts, but damn, it’s fine entertainment.