Boston Common

So it looks as though I am going to get to go to Boston after all. I wasn’t sure until a couple of days ago, because lodging and transportation is really hard to get up there because of all the tourism. But I leave Monday afternoon, and I am really excited about seeing the city and all the events which will transpire. The attorney I am working for is involved with the battle over same-sex marriage in Massachusetts, and I will be there to observe and do any work needed.

Next Wednesday, the Massachusetts legislature, known as the General Court, will convene in a joint session to consider a proposed constitutional amendment, under which marriage would be defined as one man and one woman. It has come before the legislature in the past, but supporters of same-sex marriage have used procedural tactics to block passage, and it is possible that they will do so again. The marriage amendment did not originate with the legislature, however-it was proposed directly by the people, under the initiative process outlined in article 48 of the state constitution.

Massachusetts is one of the few states, as far as I know, that requires a law proposed by initiative (voters circulating a petition) to be approved by the legislature before it goes on the ballot. Since it is a constitutional amendment being submitted, it needs an affirmative vote from 25% of the members of the General Court to get on the ballot during the next November general election. Since there are 160 members of the House and 40 members of the Senate, at least 50 members must vote for the amendment for the measure to go forward. The operative word here is “vote,” since one of the issues is whether the legislature will give the proposed amendment an up-or-down vote, or adjourn before a vote can be taken, as has been done in the past.

Right now, Massachusetts is the only state in the Union where same-sex marriage is legal. It was established by judicial fiat back in 2003, in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Vermont and Connecticut allow civil unions, which provide benefits to gay couples without issuing marriage licenses.

Another factor is the recent decision issued out of New York, victories for those of us who want to keep traditional marriage. A separate decision was issued in Georgia, upholding a ban on gay marriage under that state’s ballot initiative laws. But it is unclear how (or if) these cases will impact what happens in Boston next week.

The New York case, actually four cases grouped together, appears to be a model for how the courts should be approaching this subject. I am genuinely shocked to be saying that about the Empire State, given the apparent predominance of so-called “progressives” like Judith Kaye on the court there, but the ruling handed down this week appears to be an exception. In the opinion written by Judge Robert Smith, the New York Court of Appeals found that there is no state constitutional requirement to give homosexual couples the right to marry.

The case dealt with the assertion of forty-four same-sex couples that the state’s Domestic Relations Law, dating back to 1909, which governs marriage in the state of New York, grants the right to marry to two people of the same gender. Even though there is no gender-specific language specifying that a man must marry a woman, and vice versa, the court noted, “that was the universal understanding when Articles 2 and 3 [dealing with marriage] were adopted.” 86-89, p. 2.

It is refreshing to see an opinion particularly coming out of such an influential jurisdiction as New York, that rejects the notion that same-sex marriage is the end product of a long-standing “progression” of civil rights. The prevailing sense of “do-what-you-feel” radical individualism that has taken root in so many places will ultimately not only disrupt and weaken society, but degrade the very people whom it was meant to satisfy.

The Court of Appeal’s decision is also a shining example of judicial restraint, a concept that sorely needs to be revived in order to honor the will of the people on this issue. Judge Smith, writing for a 4-2 majority, reasoned that (quoting from foxnews.com): “we do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives.”

Any opposition to letting the people decide seems to be rooted in this fear that the desired outcome-a radical change in social policy-will not be forthcoming. But the basic idea behind representative government, and our Republic, is that the people have a say in their own individual and collective destinies. If this includes a belief that certain institutions, such as traditional marriage, are sacred and transcend some court order, then that point of view deserves respect.

It deserves its day in court.

Sources: http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf; http://www.foxnews.com/story/0,2933,202339,00.html