By Dan Kennedy • The press, politics, technology, culture and other passions

Lawmakers should defy constitution

Dan Kennedy invited me to post about Tuesday’s SJC ruling on Gov. Mitt Romney’s lawsuit asking the court to force lawmakers to vote on an initiative petition to the state constitution that would prohibit same-sex couples from marrying.

I agree with Dan: The ruling is a strange one. It doesn’t account for the parliamentary rules and procedures in place at a constitutional convention. If a lawmaker makes a motion to adjourn before taking up every item on the agenda, is he or she breaking the law? If Senate President Robert Travaglini recognizes the motion, is he breaking the law?

The ruling merely highlights what a bad amendment Article 48 is. And that it badly needs to be reformed. Are the process wonks (paging Blue Mass Group’s David Kravitz) going to take up the cause? We’ll see.

So what should lawmakers do Jan. 2 when the constitutional convention that was recessed Nov. 11 is resumed? Easy. They should adjourn without voting on the amendment that would ban same-sex couples from marrying. Thirty years from now most of those now calling for a vote on this amendment — regardless of whether they want it voted on because they believe it should be passed or because they believe in “process” — will be embarrassed by their actions. The idea that gay couples should be banned from marrying will be seen by a majority of Americans as bizarre and/or offensive. Just as bizarre and offensive as the idea of voting on the rights of racial minorities is seen today.

This whole debate about process reminds me of “Heinz’s dilemma,” which should be familiar to most readers: A man named Heinz has a wife who is dying of cancer. There is a cure for her, but Heinz cannot afford the medicine. It’s being sold by the pharmacist who developed the drug; the pharmacist is selling the miracle drug at a gigantic mark-up. Heinz tries to bargain with the pharmacist: can he make a partial payment now, get the drug and pay the balance later when he’s able to get the rest of the money? The pharmacist says no. So Heinz breaks into the drugstore and steals the drug that will save his wife.

Did Heinz do the right thing?

The answer isn’t as important as the reasoning behind it — which is supposed to show where one falls on Lawrence Kohlberg’s stages of moral development.

Those who say that Tuesday’s SJC ruling mandates lawmakers to take an up-or-down vote on the merits of the anti-gay marriage amendment — knowing full well that the amendment (which ultimately asks a majority of heterosexuals to pass judgment on the rights of a minority of homosexuals) will pass — are stuck at stage four of Kohlberg’s six stages of moral development: “Maintaining the Social Order.” To them, I have one thing to say: Grow up. Put down your Bible and/or your copy of the state constitution and pick up a copy of Martin Luther King Jr.’s “Letter from a Birmingham Jail.” See if you can’t meditate, contemplate and/or reason your way to stage five — “Social Contract and Individual Rights” — where you value law and order but understand that not every law is a good law.

At this stage, you believe that it is always morally wrong to break the law, even a bad law, but that it would be an even worse moral offense to mindlessly obey a bad law. Better yet, work yourself up to stage six, “Universal Principles,” where Gandhi and King did their thinking and living. In this stage, you know that there is no moral value in obeying a bad law and that the idea of a majority voting on the rights of a minority is, yes, morally reprehensible.

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  1. Anonymous

    The Heinz Dilemna? You’ve got to be kidding. See ya, Dan. I can’t be reading your blog anymore if you’re going to let crackpot lefties do guest posts. Try not to pollute the minds of the kids at my alma mater too badly, OK? As college kids, they’re confronted with a enough liberal lunacy as it is.

  2. neil

    Thirty years from now most of those now calling for a vote on this amendment — regardless of whether they want it voted on because they believe it should be passed or because they believe in “process” — will be embarrassed by their actions. The idea that gay couples should be banned from marrying will be seen by a majority of Americans as bizarre and/or offensive. Just as bizarre and offensive as the idea of voting on the rights of racial minorities is seen today.More argument by assertion here, like in Fred Kagan’s plan. Or more like argument by crystal ball. While you’re waving your hands over the orb, what other decisions we are now making, will turn out to be embarrassing to our future selves? The Bible is out, but soothsaying is okay.The remainder of the argument is overreaching and patronizing. Wanting to define marriage as between a man and a woman is like depriving a dying person of life-saving medicine. If you happen to think lawmakers should be forced to vote up-or-down, it’s because you are immature and stuck at a pre-Gandhi and King level of moral development, concerned only with maintaining social order. The remedy is to “work yourself up to” the level of moral development attained by the author.

  3. Bruce

    Let’s say I’m visiting Boston wth my family, and my wife and I are set upon by a gang of armed robbers who put a gun to my wife’s head demanding our money or they will kill us right there on the sidewalk.Now, let’s say I’m carrying a concealed handgun without the requistite government-issued permission slip, and I draw my weapon and fire, killing the armed assailants and ending the threat to my wife’s life.Will the liberal poitical establishment in the Bay State be going to bat for me, for my having done the “right thing”?I’d say “yes”.I’d wager the Comomnwealth woud think otherwise, seeing how an individual’s right to self-defense is something that the City of Boston refuses to recognize, as a matter of policy.Would Mayor Menino praise me for my heroic act of civil disobedience that saved my wife’s life and took some violent predators off the street for good?Ummm…I’d think not.This ties in to the “civil disobedience” argument being used by some to justify the MGC’s refusal (so far) to vote on the proposed amendment.When a citizen chooses to protest government policy by willingly violating a law of the State, that he or she feels is unjust, that’s civil disobedience (ref: Rosa Parks, Henry David Thoreau).What we have here are agents of the State violating their oaths of office, defying their constitutional obligations, and in doing so, abbrogating the rights of a group of citizens to petition the government in a manner prescribed by state law.If you can rationalize that behavior as “civil disobedience”, in your mind, then so be it.Not it my book, it isn’t.Reform the petition process, if you feel it’s in need of change. But, don’t tell me the government has the right to pick and choose which laws they want to ignore with virtual impunity.

  4. Harry

    All legislators voluntarily took an oath to uphold not their own judgments but the constitution of the Commonwealth. Their oath represents a solemn contract with the citizens they represent. Standing for recorded votes on difficult decisions of state is the very essence of a legislator’s role. This particular vote is a due process required by the constitution, as the SJC ruling explicitly noted. The universal principle of honor would require a person who is no longer willing to fulfill an oath to resign from office rather than violate their oath and their own honor. Such an action would unquestionably be consistent with the highest moral principles. It would also threaten the legislator’s comfortable lifestyles and their generous pensions. But in this case refusing to take a vote assures their future material well-being, though not their honor.I would be more persuaded of their convictions if they took a decision on principle that actually came at a personal cost rather than one that maintains them in their comfortable position with less accountability for their actions.

  5. Secret Agent Cathy

    Go Susan!(And I mean that in a good way. Not like Anonymous 10:00.)I am ever appreciating your advocacy and your strong use of the bully pulpit.

  6. Dan Kennedy

    The Outraged Liberal writes, “Based on my admitted non-lawyer reading of the decision, every Legislature since the creation of Article 48 has violated the state Constitution because, to the best of my knowledge, items have been pending on the calendar when every Constitutional Convention expires.”He’s got some excellent stuff on civil disobedience, too, very much in parallel to what SRV is saying. Read the whole thing.

  7. Anonymous

    “Heinz’s dilemma, which should be familiar to most readers…” I’m reminded of the Steve Martin skit, where he asks the audience to sing along with a newly composed song, (known only to him), “everybody now!” This degree of self-absorption is one of the reasons the level of argument has degenerated to the current level. I’m looking forward next to a pithy discourse on why vegans are better people than the rest of us.

  8. Andy

    This is for Bruce…as much as you think that Boston wouldn’t protect this right it doesn’t matter. The situation as you described it is nearly a text book case of the completely valid defense of another. That has nothing to do with liberals or conservatives.

  9. Steve

    My, my, my how outraged the anonymice are! That one would even *dare* to write about civil disobedience and adherence to higher principles! Horrors! And yet, they have nothing of substance to say. No cogent arguments at all. Strange, that. Or maybe not.But Susan, you write: “I agree with Dan: The ruling is a strange one.” I have to disagree with you. And with Dan. What else could the court do? How should their ruling be different? The SJC has a very narrow focus – read and interpret the constitution and apply it to the case as best it can. Courts certainly cannot advocate civil disobedience, whether it be by citizens or legislators. As the SJC properly realized, it must not venture into the legislature’s realm.Now, I happen to agree with you about how the legislators should act. And the legislature is answerable to the people. Vote ’em out, if you don’t like how they act.

  10. Jefferson

    Several observations.The last time I checked Massachusetts was in no danger of becoming a police state, and the pressing need for civil disobedience or “adherence to higher principles” seems a bit overwrought.Why such fear of the democratic process? Why encourage the Legislature to play procedural games? All this does is breed more cynicism about the political system and send the message that elected officials believe they can pick and choose which laws to obey.More importantly: why run from a debate over the question of same-sex marriage? Why assume that a constitutional amendment to ban gay marriage, if it makes it to the ballot, will succeed? Arizona’s voters said no.The argument that it is immoral to “put the rights of a minority” to a vote is specious. Any political system founded on the “consent of the governed” establishes civil rights through some sort of vote. Look no further than the Bill of Rights, the 19th Amendment (granting women the vote), or the Civil Rights Act of 1964 as examples of democratically established civil rights. Look no further than the Congressional prohibition of polygamy (a response to Mormon practice in Utah) as an example of how the democratic process works in establishing social norms.I don’t care for citizen initiatives. They generally lead to flawed public policy. These initiatives—often constructed around hot button issues—give direct democracy a bad name. (No wonder the Founders chose a republican form of government with its ample checks-and-balances.) But as long as the citizen petition process is on the books, it should not be cynically short-circuited.Why not more confidence in the essential decency of American voters? I think it is warranted.

  11. Susan Ryan-Vollmar

    Jefferson asked: “More importantly: why run from a debate over the question of same-sex marriage?”No one is running away from this debate. Lawmakers have been debating this issue for nearly three years. They have held 18 votes on the issue; with one exception, they have voted every time to uphold the rights of same-sex couples to marry. Jefferson added: The argument that it is immoral to “put the rights of a minority” to a vote is specious.”I’m going to go with James Madison on this issue. In the Federalist Papers, he warned against the dangers of letting an “over-bearing majority” trample the “rights of a minor party.” Many have cited recent polls showing that Massachusetts voters would uphold the rights of same-sex couples to marry. Jefferson cites the example of Arizona, where voters recently rejected an anti-gay marriage amendment (advocates won that battle because the amendment in question was so broad and overreaching it would have had a huge impact on straight people as well). To me, none of this matters. It’s all irrelevant. The idea that the civil right to marriage of a minority group in this state should be put to voters for popular vote is grotesque. We just would not be having this conversation if, by some monumental screw up, the amendment in question had to do with the civil right to marriage of some other minority, like, say, African-Americans. It will be very interesting to see what the reaction is if, as I suspect will happen, lawmakers vote on the gay marriage amendment but consign the health care amendment to a procedural death.

  12. Steve

    Jefferson – What is your opinion of Loving v Virginia?Do you think Alabama’s anti-miscegenation statute (repealed in 2000) was valid and moral?

  13. Peter Porcupine

    Ms. Vollemer – The Federalist Papers are not law or Contitution, but a record of opinion by the debaters framing that ultimate document. You can agree or disagree with the various arguments, but they have no force at law.You cite Dr. King, and Thoreau – yet both embraced and enunciated the concept that in exercising civil disobedience, you should be prepared to accept the legal and civil penalties attached. The Legislature is not willing to do this – they wish to retain their perks and priviledges while proclaiming their moral superiority. If they were sincere, they would resign. As it is, they vote to hide under their desks.As I said on another furum – there is no constitutional issue connected with making or voting for a recess – provided that the Senate Presedent who controls the agenda and the timing of a recess, announces that it will end with time remaining to take the legally mandated substantive vote. Your hypothetical is a desperate red herring.Of course, the ultimate irony is that the only way to change Article 48 – and its included poison pill to guard agaisnt amenedment – is to….amend the Cosntitution!

  14. neil

    Proponents should at least acknowledge that many Americans are reluctant to consider same-sex marriage to be simply a matter of a “civil right” for a minority. It is different. Maybe because of some childlike notion of “tradition” or even worse, something they think they read in the ick, Bible. Maybe in 30 years this reluctance will indeed be looked back upon as absurd. Maybe not. In any case that’s speculation not argument so doesn’t, as you say, matter. It’s irrelevant. That you personally find the idea of putting the idea to a popular vote to be grotesque is not an argument either. I don’t care about the Bible–I’m an atheist. But I don’t happen to like the co-optation of the word “marriage” to mean something it never meant before. (Like how “allergic” has come to mean “I don’t like it.”) I would vote in favor of defining it the traditional way. This doesn’t mean I’m homophobic. Defining “marriage” to have its traditional meaning needn’t necessarily abrogate any civil right. I wish for you every right I have. If rights are truly your concern then dissociate the rights you seek from the word marriage. Work towards the goal that same-sex couples have the same rights as people who are married–just call it something else. That’s a concession that would improve popular support. If you cared about popular support.What is “grotesque” to me is the tactic of defining anyone who disagrees with you as a moral inferior. You place yourself on the pedestal of Kohlberg’s Stage 6, the highest one, with the likes of Gandhi and King, and place those who would like their reps to get out from under their desks (I agree with PP here) and vote on the matter (even if it may be in your favor!), beneath you, down at Stage 4 with Spiro Agnew, clutching their Bibles and worrying only about social stability. This comes across as, you should accept my position because it is morally superior to yours. No wonder you’re willing to resort to procedural trickery to avoid facing the popular vote–the voice of your moral inferiors. How about instead coming out, as it were, from under the skirts of the judiciary and facing the populace. Make your best case, then go for the vote! Imagine, a legitimate popular victory–the first in the nation. Ah but you might lose! But in that case you can still pursue your rights under civil union. You just lose the word “marriage”. If you’re unwilling to risk even this, I can see why you would want to avoid a vote. Seems to me though, this kind of risk is the essence of the democratic process.

  15. Anonymous

    Once again, the irony and hypocrisy of Peter Porcupine lecturing people on ethics is mind-boggling.It’s sad that the Republican party is so obsessed with this particular vote. One has to ask — why focus on this vote, after 25 years of indifference? I think the answer is obvious. And not just from Ms. Porcupine’s fondness for the word “sodomites.”

  16. Susan Ryan-Vollmar

    Peter/Cynthia,We both know the issue you really care about is denying same-sex couples the right to marry. You can try to dress it up otherwise (such as a concern for the state constitution and the violation thereof) but we all know better. Susan

  17. Steve

    Neil says: “Proponents should at least acknowledge that many Americans are reluctant to consider same-sex marriage to be simply a matter of a “civil right” for a minority. It is different.”I acknowledge that “many Americans” are uncomfortable with it, but it’s really not different. Not different from black and white people drinking from the same water fountain, or serving in the same unit in the armed forces, or being able to marry each other. “Many Americans” were uncomfortable with that, much more recently than is comfortable for me to admit.I will never understand the intolerence some people have for things that really don’t affect them at all, beyond making them “uncomfortable”.

  18. Susan Ryan-Vollmar

    Neil wrote: “But I don’t happen to like the co-optation of the word “marriage” to mean something it never meant before.”So what do you mean by marriage? The last 30-40 years have seen dramatic — some would say traumatic — changes to the institution here in the United States. Most of us today simply take them for granted:1. Erosion of the doctrine of coverture. Prior to the 1970s when court rulings and laws chipped away at the doctrine, which is rooted in English common law, women lost their legal identity upon marrying. Today, thankfully, that is no longer the case.2. Legality of no-fault divorce, which also came about, I think, in the 1970s.3. Decoupling marriage from procreation. That happened in 1965 when the U.S. Supreme Court ruled in Griswold v. Conn. that married couples could have access to contraception.4. Legalization of marriages between people of different races. This came about in 1967 with the U.S. Supreme Court case in Loving v. Virginia.The first three changes to marriage dramatically altered the civil institution: We now have a divorce rate among heterosexuals approaching 50 percent. Marriage is no longer about raising children. Women can get married and still participate as individuals in society. The fourth change — ending bans on interracial marriages, didn’t change the institution. I don’t see how allowing same-sex couples to marry changes the institution, either. One last point: I did not put myself at Level 6 of Kohlberg’s stages of moral development. You put me there. Do I think I actually reside there? Nope. I know that I don’t. On this issue, however, the moral issues are crystal clear.The only reason we are having this big discussion about the state constitution etc. is because we are dealing with a great moral issue. Does anyone really believe all of this teasing out of the meaning of art. 48, the discussion of the duty of lawmakers, etc. would have happened with any of the other items on the agenda for the constitutional convention? I don’t.

  19. Peter Porcupine

    Ms. Vollemar – you appear to ‘know’ many things which are not acurate or true.

  20. Tim F-W

    The concern of those as Peter Porcupine for the sanctity of the Constitution is remarkable in its absence when the issue was the constitutional amendment on health care.

  21. neil

    I mean by marriage, a union of one man and one woman. I’m not trying to defend the traditional institution, as I guess Romney and other conservatives are. That it’s a better environment to raise kids, or in any way a particularly decent or wonderful thing. I don’t care about that stuff. Let Kid Rock and Pamela Anderson make their mockery of it, fine by me! But I’m not talking about the institution–I’m just talking about what the word means. None of the earlier changes Susan mentions contain such a fundamental “paradigm shift” in the meaning of the word. None engendered the same level of objection. Plenty of people react like I do, rolling their eyes at this redefinition of “marriage”, but not necessarily having any objection to equal rights. I certainly don’t share Romney’s pious “save our precious families from the queer onslaught” motivations. Maybe people like me just have to wait 30 years. But maybe too calling it something else in the meantime might be the difference between getting your rights validated with actual popular support, and having to rely on minority status for protection.As for levels of morality Susan, “Better yet, work yourself up to stage six…where you know that there is no moral value in obeying a bad law and that the idea of a majority voting on the rights of a minority is, yes, morally reprehensible.” Which is exactly your position. Which means, on your own terms, you know what only people who have achieved stage six, the highest stage of moral development, know.Steve, we live in the most liberal state in the US and even here they’re afraid to put the question on the ballot for fear of losing. Is it an epidemic of mass intolerance? Seems like “defining intolerance down” in which objections of ever-decreasing size are still labeled intolerant. Marriage between races was already allowed in 2/3 of the states when Loving was decided. Same-sex marriages are allowed in one state. I’d say that was evidence of fundamental difference that isn’t simply a matter of intolerance.Again, I have no objection to rights, but reject having this language change foist upon me. If proponents of equal rights would sooner avoid a vote, and even advocate civil disobedience, just to hang on to the word “marriage”, as if ownership of the word itself was a right too, then they’ll have no choice but to remain a minority in need of protection by the courts, because they’ll never win a popular vote. The strategy is all or nothing, and you’re intolerant or morally unevolved if you disagree. You’re either with us or against us.

  22. neil

    And that, by the way, is my final word on the subject, because I’m off to Fhloston Paradise for a week with June, Wally and the Beav, and by the time I return this topic will have scrolled off the bottom of Dan’s blog.Thanks Dan by the way for hosting my recent screedflood.

  23. Steve

    Neil, perhaps when you get back you can tell me how you know “they’re afraid to put the question on the ballot for fear of losing.”As “they” have said, loudly and repeatedly, allowing the majority to have the say over the minority’s civil and human right of marriage is what “they” object to.

  24. Dan Kennedy

    Although I usually think that argument by analogy is the next-to-last refuge of a scoundrel, it might be helpful for the purposes of this discussion.A basic truth about a constitutional amendment is that it can literally be about anything. So let’s suppose that we are talking about an amendment to bring back slavery. Yes, we have to overlook a few things — the U.S. Constitution wouldn’t allow it, and there are certain types of amendments that may not be added to the state constitution by initiative petition — but this is an intellectual exercise, so let’s pretend.Imagine that, this Tuesday, the Legislature will be meeting to consider a petition, properly signed by the requisite number of citizens, that would reclassify all Massachusetts residents of African heritage as slaves. And let’s say that we know for sure that more than one-fourth of our legislators support the amendment or believe that they should “let the people decide.”Now, what’s a good anti-slavery legislator to do? Should he do his constitutional duty by insisting that the amendment come to the floor for an up-or-down vote and then vote against it? Or should he work to kill the amendment by any means necessary — by organizing a boycott so that there is no quorum, or by voting in favor of a recess? What about it, folks? How much would the process matter then?And if you think a slavery amendment should be killed by any means necessary, but are unwilling to say the same about the anti-gay-marriage amendment, then the truth is that you’re not so much worried about the process as you are elevating the moral standing of one group (African-Americans) over another (gay and lesbian couples).Also —Peter Porcupine: You are only half-right about the Federalist Papers. The courts regularly look to authoritative outside documents when interpreting the Constitution. Documents don’t get more authoritative than the Federalist, because it tells us what certain Founders were thinking.Neil: It is a cheap and scandalous trick to accuse Susan of comparing herself to Gandhi and King merely because she cited them in her discussion of Kohlberg’s stages of moral development. She was doing nothing of the kind, and I’m sure our more discerning readers realize that.

  25. Scott Allen Miller

    I think I get it now: If you can rationalize an action, it’s not only moral but perhaps even morally superior to the actions of others? Paul Hill and John Salvi had their rationalizations, too. They decided to “defy the constitution” (as interpreted in Roe v Wade) because they sincerely believed they were saving many innocent “lives” of fetuses and embryos by taking a few lives of abortion clinic workers. These kooks saw themselves as heroes and, in Hill’s case at least, martyrs.As a person who supports gay marriage, who would not have signed an amendment ballot petition if asked (I wasn’t), but who also believes the legislature should carry out its duties by having a vote now that the signatures have been gathered, I’m amazed at how many people who support gay marriage now are against “the process” when it was “the process” that made gay marriage legal in the first place! Hillary Goodridge, et al, brought a case against the MA DPH, it made its way through the court system all the way to the SJC, the ruling was handed down, and the law as it was then written was ruled unconstitutional. That’s “the process”.At any point after the ruling, Governor Romney could have decided to “defy the constitution” (as interpreted in Goodridge v MA DPH) “the process” by refusing to print new marriage license applications, refusing to issue the licenses when the applications were turned in, sending state police or National Guard troops to lock and barricade town halls a la George Wallace (as many gay marriage foes were demanding that he do), etc, etc. It could have gotten real ugly. Romney certainly would have his rationalizations, weak as though they may be, for defying the constitution back in May 2004.But Romney respected the process. There was no constitutional showdown or crisis. He did not paraphrase President Jackson and say, “Margaret Marshall has made her decision, now let her enforce it” (although apparently if he had, she and the rest of the court would have folded like a cheap suit, evidently. I’ve never heard of a modern state supreme court that is so toothless. Have they never heard of contempt of court?)I’m squeemish about letting the majority vote on the civil rights of a minority group, too, but it’s been done before many times. Congress just renewed the Voting Rights Act which has a huge impact on the voting rights of minorities. The 19th Amendment to the US Constitution granting suffrage to women was ratified by an overwhelmingly male body politic. Rightly or wrongly, the majority has decided that a minority of Rastafarians cannot get high and that a minority of ultra-Orthodox Jews cannot sacrifice chickens for Yom Kippur, all for the sake of freedom of religion.From the rhetoric I’m hearing and reading, you’d think that no civil rights have ever come into existence except by court order and that, given the opportunity, the majority always sides against the rights of the minority. History does not show this to be the case at all. Sometimes the majority gets it wrong, and sometimes not. And here’s a shocker: Sometimes the majority voting on the court gets it wrong, too. Judges, like the public at large, are human beings who are prone to faults, ignorance, prejudices, and blindspots. Neither Loving v Virginia nor Plessy v Ferguson are sacrosanct decisions handed down on stone tablets from On High. They were/are binding and they were/are law, but they were/are human efforts and therefore susceptible to corruption.I believe if a vote were held today, most voters would support allowing gay marriage to continue. Mass Equality, which opposes having the legislature carry out its constitutional duty, conducted a poll in 2005 showing 62% of MA residents support gay marriage. No state lawmaker who has supported gay marriage has been voted out. And the state is inaugurating a governor later this week who won the election with 59% of the vote in spite of the fact that he supports gay marriage. So… where’s the big bad ballot box bogey man?

  26. Peter Porcupine

    Tim F-W :I have written many times on BMG, although not here, that the health care amendment should be acted on as well. I did not mention it as it was not the topic of this post. In fact, Ms. Vollemer and no other commenter mentioned it either.What is your rationale for taking only me to task for the omission?PS – Before you get there, the Legislature should have funded Clean Elections as well.

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