Grotesque Anatomy
Thursday, November 20, 2003
  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.
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