Congrats to Eve Tushnet for her article in the National Catholic Register, “Defending Marriage, After Massachusetts.”
About half of Eve’s case is the familiar “marriage-is-about-heterosexual-reproduction-because-I-say-it-is” argument. First, though, comes a relatively new twist – what Eve terms the “bait and switch” argument.
The court drew on several laws and state constitutional provisions in making its case, including anti-discrimination laws, hate-crimes laws and a constitutional provision modeled on the failed Equal Rights Amendment forbidding discrimination on the basis of sex.
There’s just one problem: When Massachusetts legislators voted for these laws, they were assured again and again that same-sex marriage would not be the result. There is virtually no chance that these laws would have passed if voters and legislators had believed they would lead to the radical redefinition of marriage.
The Massachusetts court is saying to citizens, “You all go ahead and vote for the laws. Then we’ll tell you what you really voted for. Don’t expect it to look much like what you thought you agreed to.” The rule of law requires that laws be predictable and stable – that laws not be yanked out from under citizens like a carpet in a Tom and Jerry cartoon.
How many premises of Eve’s argument are wrong?
1. Did the precedents Eve mentions really lead to gay marriage?
First of all, Eve implies that these precedents (hate crimes, the ERA, anti-discrimination laws) were essential – or at least important – to the Goodridge decision. In fact, they barely mattered at all; to claim they led to gay marriage is either deceptive or wildly mistaken.
Perhaps Eve needs to reread the decision. The Massachusetts equivalent to the ERA isn’t even mentioned in the majority opinion (it comes up only in a concurrence); and the hate crimes and anti-discrimination statutes Eve refers to are an extremely minor part of the decision (they are mentioned just once, as part of a list of laws; by word count, they constitute one-third of one percent of the majority’s opinion).
The fact is, the majority decision barely mentioned these laws, let alone relied on them to make its case. Even if legislators had voted against hate crimes and employment rights for gays, the Goodridge decision would have been the same – except a few words shorter.
But what about Justice Greaney’s concurrence? It referred to the ERA-like provision of the Massachusetts constitution quite a lot; and since the court’s decision was decided on a 4-3 vote, Greaney’s concurrence was essential.
Again, reading the actual text deflates this argument. Greaney begins his concurrence by stating, “I agree with the result reached by the court, the remedy ordered, and much of the reasoning in the court’s opinion. In my view, however, the case is more directly resolved using traditional equal protection analysis.” It is only in this “more direct” alternate reasoning that the ERA-equivalent comes up at all – but, given his agreement with the result, the remedy, and much of the reasoning, it’s plain that Greaney would have voted the same way even if the ERA-like law had not existed. In fact, Greaney himself says so, in a footnote:
I am cognizant of the voters’ intent in passing the [ERA-like amendment] in 1976. Were the revision alone the basis for change, I would be reluctant to construe it favorably to the plaintiffs, in view of the amendment’s recent passage and the voters’ intent. The court’s opinion, however, rests in part on well-established principles of equal protection that are independent of the amendment. It is on these principles that I base my opinion.
So the legislation that Eve is worried led to Goodridge? She needn’t worry – Goodridge would have happened with or without that legislation. It is thus inaccurate to claim that this legislation led to gay marriage.
(For a similar argument, check out Mark Barton’s post on MarriageDebate.)
2. Did the voters have no idea that gay marriage might result?
For the sake of Eve’s argument, let’s ignore reality for a moment and pretend that the legislation Eve discusses did lead to Goodridge. For Eve’s point to stand, we’d still have to buy that the voters were deceived – that is, they had no way of knowing that the ERA and laws recognizing that gays deserve human rights might lead to gay marriage.
Which is absolute bunk.
First of all, in all the cases Eve mentions, opponents argued that the proposed legislation would lead inevitably to same-sex marriage (and thus, they seemed to think, to the collapse of civilization). So the voters were faced with contrary expert opinions, some arguing that this legislation could someday lead to gay marriage, some arguing the opposite. Given this history, it’s ridiculous to claim that voters weren’t aware of the possibility of gay marriage.
Secondly, in the case of the ERA, even some of the ERA’s feminist supporters argued that the ERA could lead to same-sex marriage – but in their view, the potential for same-sex marriage was a feature, not a bug. (Of course, some feminists argued the opposite – feminists were split on both what the ERA would mean, and on how to argue for it. For a detailed discussion of that split, I recommend Why We Lost the ERA.)
Eve’s story of tragically ignorant voters, who were simply never told that same-sex marriage was a theoretically possible outcome of the ERA and other changes, is compelling – but it’s also fiction.
3. The U.S. is ruled by a Constitution – not by a majority.
I wonder what Eve would say if a majority of voters – in a referendum, say – passed a law denying gays and lesbians the right to free speech? The courts would (I assume) overturn such a law on Constitutional grounds. Would Eve object, on the (correct) grounds that the framers of the First Amendment didn’t foresee it being used to give equal rights to gays, and therefore this is a case of the courts changing what the legislature voted for?
It’s not as if the framers of the Fourteenth Amendment envisioned Loving versus Virginia (which made it unconstitutional for states to outlaw mixed-race marriages) – or even Brown vs Board of Ed (which found that separate is not equal). Yet I doubt that Eve would argue that these decisions were blows to democracy. Most Americans, with the benefit of hindsight, seem to agree that these decisions corrected major injustices.
Eve seems to miss out on the logic of Constitutional rights. Where an individual’s Constitutional rights come into conflict with the majority’s prejudices, it’s essential that the Constitution hold sway. No one’s constitutional rights should be held hostage to what the majority likes or dislikes – or even to what the majority has liked or disliked historically. As Justice Greaney wrote,
The Massachusetts Constitution was never meant to create dogma that adopts inflexible views of one time to deny lawful rights to those who live in another. The provisions of our Constitution are, and must be, adaptable to changing circumstances and new societal phenomena, and, unless and until the people speak again on a specific subject, conformable in their concepts of liberty and equality to what is fair, right, and just.
UPDATE: Edited later to change “legislators” to “voters,” since apparently the ERA in Massachusetts was enacted by voter ballot..
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