After Mass. Aftermath
Stuff I've run across recently while reading about Tuesday's same-sex
marriage ruling:
Strange Hypotheticals. From
David
Bianco on the Marriage Debate blog: "Ask yourself: If a
child's parents were killed in an accident, all other things being
equal, would it be better for that child to be raised by an aunt and an
uncle, or by two aunts? If a little boy's mother died in childbirth,
would it be better for him to be raised by his father and aunt or by
his father and uncle?"
Answer: Insufficient data. Simply knowing the
genders of the involved parties tells me nothing about who would be
best suited to meet the interests of the child in either
scenario. Bianco can stipulate "all other things being
equal" all he wants, but in the real world all other things
aren't
equal. You'd have to look at the details of a particular case to
decide. There's no fixed formula for deciding such matters.
Great Quotes. From
Salon
: "The right wing is not just anti-marriage for gay people, they're
against gay people period. If we were asking for oxygen, they'd be
against it." -
Evan Wolfson, leader of the Freedom to Marry project.
Job Confusion. OK, I'm no lawyer or constitutional
scholar, but isn't it the courts'
job to make sure the
legislative branch is legislating properly? I'm tired of hearing
people bash the judiciary as "
tyrannical"
when they don't agree with a
decision. Yes, the legislature makes the laws, but they have to
do so within certain boundaries. It falls to the courts to tell
the lawmakers when they step outside those limits.
Part of the reason I sympathize with the courts is because, in my day
job, I'm a Quality Assurance Analyst. So I know what it's like to
be resented for telling others they're not doing their job
properly. And it's not as though I can't understand that
feeling--that bristling that occurs when your performance is under
evaluation: It's part of the QA process that quality assurance
team members are audited as well (so enough with the "Who watches the
watchmen?" jokes already). But I believe that such a system of
checks and balances keeps things running smoothly in the long run, even
if there is some friction from time to time.
Political Advice: Slate's
William Saletan suggests
that Democrats embrace the same-sex ruling and champion the issue as
follows:
Marriage is a broadly shared American value. You don't have
to support
homosexuality to support marriage. A politician can say, "I'm
pro-marriage. The issue isn't whether you're straight or gay. The issue
is whether you support marriage."
It's a nice idea, but I doubt any Democrat is brave enough to try
it. Besides, for many people marriage simply means "exclusive,
legal union between a man and a woman" so a Democrat saying he supports
marriage for gays might play like a Democrat saying he supports
squareness for circles. Unfortunately, I think the Republicans
have already succeeded in cementing their repugnant position as the
"pro-marriage" one.
Talking Past Each Other. For the most part,
the
full decision reads like an everyday argument regarding same-sex
marriage. The majority opinion frames the issue as citizens being
denied equal access to a fundamental right already in existence.
The dissenters (each writing a separate opinion) see the matter as
attempting to create a
new right for a distinct group
It's as though the two sides are discussing two completely different
cases.
At least until the third and final dissenting opinion
comes along. Justice Robert Cordy actually examines the
majority's opinion and makes specific, supported arguments detailing
why the decision may be bad law. In a nutshell, Cordy argues that
"[s]o long as the question is at all debatable, it must be the
Legislature that decides." He then outlines plausible scenarios
in which a "rational Legislature, given the evidence, could conceivably
come to a different conclusion, or could at least harbor rational
concerns about possible unintended consequences of a dramatic
redefinition of marriage." Hmm. I guess part of being a
Watchman is realizing when something is beyond the scope of your own
authority, or when your own actions might subvert the very procedures
you're entrusted to safeguard. To indulge in geek speak, it might
not be the best idea to slam in a patch without following proper change
control processes--even if you're
sure the fix will
work.
I still think same-sex marriages should be legal, but
perhaps the Massachusetts ruling isn't the best way to go about it
after all. I'll have to reflect on this more.
