Agree with you on this one. And that it is only a 4-3 decision lessens its impact.

Meanwhile, I'm sure the media will go ga-ga over this, as it does with any abortion decision. Thus, more significant news, such as the pending Medicare bill, will not get the coverage it deserves.

I should have mentioned by now that your post on the dark side of liberal judical "victories" was an major Eureka moment for me.

I cannot emphasize enough how important this has been towards demystifying much of the current political currents in this country.

I'm just mad I didn't think of it first!!

I agree that it is better to win a victory legislatively than through the courts, but in the case of massachusetts, a majority of the legislature has supported some sort of domestic partnership and non-discrimination legislation for years, but the ultra-conservative speaker of the house has prevented it from ever coming up for a vote?

What's so democratic about that?

A majority of people in Massachusetts support gay marriage. (A poll this fall put it at 58%, while only 22% thought it would be bad for the state.) So in this case the court gave an opinion that was in-line with the majority of the people...AND the majority of our elected representatives.

I'm married and enjoy lots of rights that go with it, including being on my wife's health insurance plan. I'd feel a bit hypocritical asking a family who did not have these rights to "take one for the team" because in 10-20 years we might get something through the legislature.

Then, progressives should be mobilizing to dump the speaker, throw out his supporters in primaries, and kick him out of office.

Brown was needed because no democratic process was going to dislodge southern conservatives who had disenfrancised black voters. They were elected by undemocratic means so Supreme Court action was a countervailing antidemocratic measure that may have been needed.

The same cannot be said in the Massachusetts situation. THere are routes to democratic action-- they are slower but they're more long lasting.

Nathan

"The same cannot be said in the Massachusetts situation"

Sorry, that is splitting too fine a hair. Either people have rights under the law, or they do not. If the courts cannot ptotect the rights of minorities form the tyrrany of the majority, then why do we have a bill of rights?

Why have a Constitution? To state what rights should not be subject to majority will.

That's a completely separate issue from WHO should make sure legislators respect the Constitution. In early American history, it was often the President who said he did so, using the Presidential veto against perceived unconstitutional legislation. Andrew Jackson vetoed the Second Bank of America on that basis.

Voters also can act as a check, knocking out legislators who ignore the Constitution.

The question is why anyone thinks that nine Justices on the Supreme Court are more likely to serve preservation of the Constitution than voters? The history of the Supreme Court is mostly serving the interests of venal corporate special interests, not individual rights of oppressed minorities.

The history of the Supreme Court is of being the most evil institution in American society. It was the Supreme Court that plunged the US into Civil War with the Dred Scott decision and it was the Supreme Court that gutted Reconstruction with a series of terrible decisions and it was the Supreme Court that struck down most decent economic social legislation in the Lochner era. And now we have the Rehnquist Court screwing unions, affirmative action, and serving all manner of corporate interests-- and all liberals can notice are these very infrequent civil liberities decisions.

Betting on courts to preserve your rights is a losers game for progressives.

I'm not disagreeing that legislative change is better than court wins as a way of effecting lasting change; but you should know that the House Speaker in Massachusetts is generally considered to be the most powerful politician in the state. Progressives have been trying to get him out for years, and haven't succeeded.

Sadly, the situation is Massachusetts is dire. Most people do not believe that Speaker Finneran can be removed under any circumstances. There have been a few attempts to oust him, and when they have failed (largely because Finneran controls local spending to a ridiculous degree, and uses it to threaten and reward to a preposterous degree) Finneran has punished those reps who tried. Individuals do not feel that it's worth trying to elect a local anti-Finneran rep, as it puts local funding at risk without having an upside of potentially getting rid of Finneran. It's a prisoner's dilemma, to most people.
In addition, our Republican governors have encouraged the Conservative Democratic House and the liberal Democratic Senate to fight unproductively, to make Republican governors look bad. They also encourage stupid, badly written superficial initiatives to get onto the ballot, making the state legislators look bad for opposing them and in some cases refusing to implement them.
This is a serious problem in Massachusetts, and I wouldn't be surprised if it's a problem in other states. State government has always been the most corrupt level, but it's gotten to the point where the voting populace (and I specifically mean those who still vote and are active) have no faith in the state legislatures to be remotely competant.
I haven't really looked into it, but I suspect the percentage of US legislators who have experience as state legislators is decreasing, as people don't see that experience as a positive. This leads to federal legislators who are not prepared to fulfil their duties, which is bad news all around. Not that all Reps and Senators need to have served, but it's good experience.

Sorry to be so long-winded,
-V.

Nathan, I agree with you to a point about the limits of judicial review. But it's not clear to me that putting all left-of-center eggs in the legislative basket is a winning, never mind prudent, strategy. Too often state legislatures--generally part-time institutions with part-time members--are plodding at best and hostile at worst to changing laws to reflect modern social mores. And Massachusetts is one of the few states that has anything approaching a full-time legislature.

Take, for example, the laws in Massachusetts against sodomy. Looking just at the Massachusetts General Laws, they are still on the books. Indeed, a bill to repeal them has been bottled up in committee, to die yet again for the legislative year. Yet the sodomy laws in Massachusetts have been unenforceable since a decision by the SJC in 1974. Despite the howls from the Louise Day Hicks wing of the state Democratic party back then, there was no substantive backlash--only a resolve to keep the archaic laws on the books.

You have written recently that it's important to win elections to get the dead wood and the bad wood out of the legislature. That's certainly true, but it's certainly very hard. The Greens--probably in the best position to shake things up in Massachusetts--have proven amazingly incompentent at doing so. Out of a possible 200 legislative races in 2002, they contested a whopping seven. Massachusetts is pretty near a one-party state in the legislature. Spoiling a few retrograde D seats for the Republicans would not have been a disaster (particularly in the House, where the Dems have a huge majority). And any Green House candidate would have a welcome one-sentence platform: "I will vote against Tom Finneran for Speaker of the House." What maroons.

Far more productive than throwing seats to republicans is to win victories in the Democratic primary. The problem is that this has proven extremely difficult outside of the most liberal communities in the state.

In any case, the legislature will no doubt vote on a constitutional amendment to ban gay marriage, and if it passes in 2 consecutive sessions the people of Mass. will vote on it (in 2006) so in that sense it will be voted on.

Nathan:
I must say that I agree with Kevin and I wrote the following to the Washington Post (which of course did not publish it):

HYPOCRISY BY ANY OTHER NAME
This week’s controversial ruling by the Supreme Judicial Court of Massachusetts can be succinctly summed up in four sentences from the Court’s decision: “The Massachusetts Constitution affirms the dignity and equality of all individuals; It forbids the creation of second-class citizens; In reaching our conclusion we have given full deference to the arguments made by the Commonwealth; But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”

While the ruling has sparked wide-spread concern among both those who favor same-sex marriages and those who believe that marriage should be limited to a union between a man and a woman, the decision itself is unassailably anchored in the basic tenets that have, until recently, been the hallmark of America’s rich tradition of continually expanding personal freedoms and liberty. It is unfortunate that most of our society’s greatest leaps toward greater freedom have emanated from the words of the judiciary and not from the mouths of our political leaders.

Following the Court’s decision, I have ironically heard many self-proclaimed liberals deplore the ruling as providing conservatives with additional ammunition to employ during next year’s presidential campaign. Such a contention either entirely misses the point of the Court’s decision or indicates that those “liberals” have already conceded their inability to appropriately frame this issue before the public. How can any red-blooded American deny the “dignity and equality of all individuals?”

Scanning back through the course of our history, those favoring such a denial of individual liberty, would certainly be opposed to many of the fundamental rights that today we so thankfully take for granted. Imagine a society teeming with scores of second-class citizens? Women, Blacks, foreign-born citizens, gun owners, those with physical disabilities. The list would be endless. Are we not all now better off?

Shortly after the Court’s ruling, the Family Research Council, which opposes same-sex marriages, released a statement proclaiming that the Constitution must be amended “if we are to stop a tyrannical judiciary from redefining marriage to the point of extinction.” I would respectfully challenge those who oppose the Massachusetts Court’s ruling to further examine the definition of “tyrannical.” Only then, will they be able to fully comprehend and appreciate the phrase “dignity and equality of all individuals.”

Nathan:
I must say that I agree with Kevin and I wrote the following to the Washington Post (which of course did not publish it):

HYPOCRISY BY ANY OTHER NAME
This week’s controversial ruling by the Supreme Judicial Court of Massachusetts can be succinctly summed up in four sentences from the Court’s decision: “The Massachusetts Constitution affirms the dignity and equality of all individuals; It forbids the creation of second-class citizens; In reaching our conclusion we have given full deference to the arguments made by the Commonwealth; But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”

While the ruling has sparked wide-spread concern among both those who favor same-sex marriages and those who believe that marriage should be limited to a union between a man and a woman, the decision itself is unassailably anchored in the basic tenets that have, until recently, been the hallmark of America’s rich tradition of continually expanding personal freedoms and liberty. It is unfortunate that most of our society’s greatest leaps toward greater freedom have emanated from the words of the judiciary and not from the mouths of our political leaders.

Following the Court’s decision, I have ironically heard many self-proclaimed liberals deplore the ruling as providing conservatives with additional ammunition to employ during next year’s presidential campaign. Such a contention either entirely misses the point of the Court’s decision or indicates that those “liberals” have already conceded their inability to appropriately frame this issue before the public. How can any red-blooded American deny the “dignity and equality of all individuals?”

Scanning back through the course of our history, those favoring such a denial of individual liberty, would certainly be opposed to many of the fundamental rights that today we so thankfully take for granted. Imagine a society teeming with scores of second-class citizens? Women, Blacks, foreign-born citizens, gun owners, those with physical disabilities. The list would be endless. Are we not all now better off?

Shortly after the Court’s ruling, the Family Research Council, which opposes same-sex marriages, released a statement proclaiming that the Constitution must be amended “if we are to stop a tyrannical judiciary from redefining marriage to the point of extinction.” I would respectfully challenge those who oppose the Massachusetts Court’s ruling to further examine the definition of “tyrannical.” Only then, will they be able to fully comprehend and appreciate the phrase “dignity and equality of all individuals.”

I'm surprised the court didn't take the same route as the Hawaii Supreme Court did in Baehr v. Lewin, i.e. make a narrow ruling based on specific language in the state constitution.

Good people strengthen themselves ceaselessly.

Make sure you still have something worth wishing for.