A depressing setback for marriage

At this point, it’s just depressing. Voters in Maine last night overturned their state’s same-sex-marriage law by a margin of 53 percent to 47 percent.

The very idea that we should have the right to vote on whether our neighbors are fully human is offensive. The fact that the latest expression of “no, they’re not” comes from live-and-let-live Maine only makes it worse.

“God has given us this victory,” the Rev. Bob Emrich is quoted as saying in the Bangor Daily News. Perhaps KnowThyNeighbor.org will tell us how much cash the Big Guy ponied up.

Better news from Washington State.

Critical mass for same-sex marriage

Last July I wrote an item — prematurely, as it turned out — noting that one in five Americans lived in a state where same-sex marriage was legal to a greater or lesser extent. I made that observation not long after the California Supreme Court recognized a right to same-sex marriage, overturned in a voter referendum last November.

With New Hampshire becoming the fifth New England state to embrace gay marriage, it’s time to do the math again. California was an enormous setback, so the numbers don’t look as good as they did a year ago. Bit by bit, though, marriage equality is moving forward.

First, let’s take the six states where same-sex marriage is explicitly recognized or soon will be — Massachusetts, Connecticut, Maine, Vermont, New Hampshire and Iowa. With the exception of Massachusetts, all are low-population states, adding up to about 14.8 million people, according to the most recent U.S. Census estimates from July 2008. They account for a shade less than 4.9 percent of the total U.S. population, which is about 304 million.

But now let’s consider New York. Already, thanks to an order last year by Gov. David Paterson, same-sex marriages performed in other jurisdictions are recognized. With nearly 19.5 million people, New York has a higher population than the other six states combined. Put them all together, and you’ve got about 22.8 million people — 9.6 percent of the total population, close to the proverbial one in 10.

Moreover, the state seems to be moving toward outright legal recognition for same-sex marriage. The process has gotten bogged down, and a New York Times editorial today urges the state senate to get moving. Overall, though, there’s reason to be optimistic.

There’s no question that the constitutional amendment California voters approved last fall to ban same-sex marriage was an enormous blow. The recent decision by the state’s supreme court not to overturn the amendment was unsurprising.

At some point, though, it seems inevitable that liberal, blue California will re-enshrine same-sex marriage. And with more than 36.7 million people, it remains the big prize. Add them to the other six states plus New York, and you’ve got 58.9 million people, or 21.7 percent of the U.S. population.

Interestingly, marriage-equality advocates seem dubious, to say the least, about a bid by celebrity lawyers David Boise and Theodore Olson to take gay marriage to the U.S. Supreme Court. The votes almost certainly aren’t there now, and with liberal justices more likely to retire than conservative ones over the next few years, it could be a long time before the court’s make-up changes in a fundamental way.

More immediately, would anyone care to predict how Justice David Souter, who’s retiring, would vote on same-sex marriage, and how his likely replacement, Judge Sonia Sotomayor, would vote?

The good news is that the country is gradually moving toward allowing same-sex couples to marry. At some point, federal intervention will be needed because, as with mixed-race marriages, there are some states that will never recognize fundamental human rights.

For the time being, though, the state-by-state process is helping to normalize an idea that was alien to many Americans just a few years ago.

Photo (cc) by Scubaben and republished here under a Creative Commons license. Some rights reserved.

A wistful farewell to Sal DiMasi

Many of you will miss Sal DiMasi before too long. Not me. I miss him already.

Mr. Speaker, as Boston Globe columnist Yvonne Abraham notes while kicking him to the side of the curb, saved us from casino gambling, pushed the idea of a higher gas tax as an alternative to toll hikes, was a stalwart on preserving same-sex marriage and much more.

We are almost certainly going to get less good government with DiMasi’s successor, whoever that may be. Do you really think we’re going to get cleaner government? Please.

Look — the Globe did terrific work on exposing DiMasi’s less-than-wonderful side, and prosecutors can hardly ignore the possibility of criminal wrongdoing. I understand that. But we are going to miss him.

More: The casino forces are celebrating already, as you can see from this post at Casino Gambling Web. It begins with a falsehood — “Governor Duval [sic] Patrick ran for office in Massachusetts on a platform of expanded casino gambling” — and ends with this:

Lobbyists who have already been working hard to have casino legislation are relieved that a major roadblock is now out of their way. When DiMasi won re-election, casino proponents felt deflated, but now that door has swung wide open.

Look out below.

Still more: Jon Keller has similar thoughts.

Not being evil

One more reason to use Google: a religious-right activist says the godly should refuse to use it because the company opposes a proposed constitutional amendment in California that would ban same-sex marriage.

Good to see that Google is living up to its informal corporate motto — “Don’t Be Evil.”

One in five

With the Massachusetts Legislature on the verge of repealing a 1913 law that’s made it difficult for out-of-state gay and lesbian couples to marry here, we’ve reached a remarkable moment in the rise of same-sex marriage — more remarkable than perhaps most people realize.

Yes, only two states allow same-sex marriage: Massachusetts and California. But, since May, the state of New York has recognized same-sex marriages performed in other jurisdictions, making it possible for New York couples to marry in, say, Canada or Massachusetts.

The combined population of Massachusetts, California and New York is 62.2 million — nearly 21 percent of the total U.S. population of 299.4 million. That means one in five Americans lives in a state where same-sex marriage is recognized.

California voters might repeal same-sex marriage this November. But given that the state’s Republican governor, Arnold Schwarzenegger, opposes the anti-marriage referendum, there’s reason to be optimistic.

A final observation about Massachusetts. Yesterday’s state Senate vote to repeal the 1913 law was unanimous. The vote in the House is expected to be overwhelming. Can we finally stop the charade that gay marriage was forced on us by “unelected judges,” as critics inevitably charge?

It may have taken the state’s Supreme Judicial Court to start the debate. But last year opponents failed to win over the mere 25 percent of legislators needed to place the question on the ballot. And now our elected legislators are taking the final steps toward normalizing same-sex marriage, secure in the knowledge that most of their constituents either support marriage equality or don’t strongly object.

More: Esther offers some observations at Gratuitous Violins.

Media Nation on the air

I’m scheduled to be on XM Radio’s “The Agenda” today from 7:05 to 7:25 p.m. The program is sponsored by the Human Rights Campaign, an advocacy group dedicated to advancing gay and lesbian civil rights. I’ve known co-host Mary Breslauer for years, so it should be fun.

Yes to marriage equality

I hadn’t planned to post at all — I’m in the business center of a Best Western in Arlington, Va., helping to chaperone my daughter’s eighth-grade class trip to Washington — but I had to pause for a moment to celebrate the Legislature’s standing up for marriage equality.

Here is Bay Windows’ account. This is great news for the state, and, I hope, the end for the anti-marriage forces.

What about health care?

Not to buy into the savvy-bloggers-versus-clueless-MSM trope. But it does appear that the mainstream media might have missed one of the most significant aspects of yesterday’s vote by the Legislature to advance the anti-gay-marriage constitutional amendment. By their omission, the media may have helped create the false impression that legislators were acting on principle rather than expediency.

Both the Globe and the Herald today cite last week’s Supreme Judicial Court ruling that legislators must vote up or down on citizen initiatives as the main reason that the amendment was not killed through a parliamentary maneuver, as has happened on several occasions in the past.

In the Globe, Frank Phillips and Lisa Wangsness write:

[T]he vote marked a dramatic shift in fortune for social conservatives and Governor Mitt Romney, who just weeks ago had little hope the petition would move forward. Both they and same-sex marriage advocates said the Supreme Judicial Court’s ruling was the major factor that shifted the political ground in favor of the proposed amendment.

In the Herald, Casey Ross puts it this way:

[State Sen. Richard] Tisei and other observers said [Gov.-elect Deval] Patrick, who called a press conference to explain his opposition in the morning, did not seem to understand the impact of a Supreme Judicial Court ruling last week that unambiguously stated that lawmakers had to take an up-or-down vote.

WBZ-TV (Channel 4) political analyst Jon Keller writes this on his blog:

[T]he SJC’s ruling that legislators were obligated to vote today was cited by everyone involved in the con-con, from [Massachusetts Gay and Lesbian Political Caucus co-chair] Arline Isaacson to Trav [that would be Senate President Robert Travaglini] to Mitt Romney, as a key factor in what occurred. The same SJC that infuriated so many with the gay-marriage ruling has now restored its legitimacy in the minds of all but the most obtuse.

So there you have it — reluctant legislators obey the court and uphold their oath of office by voting to advance an amendment that only 31 percent of them support. Let’s give them a hand.

But wait — wasn’t there another constitutional amendment the legislators were supposed to vote on yesterday? Uh, the answer to that would be “yes.” A citizen initiative to amend the state constitution by guaranteeing everyone health care (Media Nation is not clear on the details) was supposed to be voted on yesterday, just like the anti-gay-marriage amendment. And guess what? It wasn’t. I can find virtually no mention of this in today’s coverage — but several bloggers picked up on it immediately.

Most prominent was Blue Mass Group, which has taken a pounding from its liberal readers for insisting that the Legislature vote on all constitutional amendments, including the gay-marriage ban. Last evening, Blue Mass Group blogger David Kravitz, coming off as sadder but wiser, wrote:

The results are in: the legislature took a vote on the merits of the anti-marriage amendment, and advanced it to the 2007-08 session, but did not do so on the health care amendment, so it died on the vine. So they have — no question — violated their oaths of office. And they’ve made those of us who asked them to follow the law on the marriage amendment, even though we suspected the results would be disappointing, look pretty silly. Thanks guys.

The Outraged Liberal, who had urged the Legislature to engage in “civil disobedience” by refusing to vote on the anti-marriage amendment, opined last night:

Process liberals may have also learned a very hard lesson — particularly with the Legislature’s refusal to vote on the health care amendment. Next time there may be a better understanding that principle of the question is more important than the principle of the process.

Universal Hub wraps up blogger comment this morning — again, acknowledging the hypocrisy of the Legislature for upholding the constitution by voting on gay marriage but then thumbing its nose on health care.

The sole mainstream-media reference to the health-care amendment I could find this morning in my admittedly less-than-comprehensive search was in this story, by David Kibbe of Ottaway News Service. His lengthy account of the gay-marriage debate ends with this:

In other action yesterday, the Legislature bottled up a proposed ballot question for universal health care by sending it a committee. Opponents of the question said it would hamper the state’s efforts to establish a landmark health care law to greatly expand health coverage. But those who backed it said it would help the state achieve its goal.

That seems pretty straightforward, doesn’t it? The legislative session expired yesterday, so the health-care amendment can no longer be considered for the 2008 ballot. Thus it would appear that the Legislature explicitly ignored the SJC’s vote-or-else decree, making a mockery of the supposed respect for the process it demonstrated by advancing the anti-marriage amendment.

The media’s failure to point out this prime example of constitutional hypocrisy seems so mind-boggling that I keep thinking I must be missing something; that for some technical reason perhaps the Legislature was not obligated to vote on health care. If I’m wrong, let me know — not that you need to be told.

Update: Laura Kiritsy of Bay Windows gets it right. Kiritsy also reports that legislators went ahead and voted despite a legal opinion from the Senate counsel that they didn’t have to.

Update II: Good editorial in the MetroWest Daily News.

And so it ends

The Legislature has approved the same-sex-marriage ban without even doing it on principle: It voted to advance the anti-gay-marriage amendment to the next session while killing a health-care amendment on procedural grounds, in open defiance of the Supreme Judicial Court.

David Kravitz of Blue Mass Group, who’s pro-gay marriage but who favored a vote on good-government grounds, sounds like he might have learned something today. We’ll see.

Further thoughts on Article 48

With the Legislature scheduled today, once again, to vote on a proposed constitutional amendment that would outlaw same-sex marriage, I want to develop a bit more fully an argument I offered over the weekend in the comments section.

Legislators face a difficult dilemma. Under the terms of Article 48 of the Massachusetts Constitution, they must vote on a citizen petition that would ban gay marriage. Just 50 of the 200 legislators — 25 percent — need to vote “yes” for the amendment to move on to the next session of the Legislature. If it gets 25 percent again, the amendment would go on the 2008 ballot, and would become part of the constitution if it received a simple majority.

The trouble is that though most legislators oppose the anti-marriage amendment, enough support it that the 25 percent hurdle can be easily met. That’s why the Legislature voted to go into recess rather than hold a vote back in November. But using such parliamentary tactics became more difficult last week when the Supreme Judicial Court ruled that the Legislature must hold an up-or-down vote on the merits of the amendment itself, even though the court acknowledged there is no way to enforce its ruling.

The court’s decision naturally provided a boost to the anti-marriage crowd. But it also bolstered the position of process liberals like the bloggers at Blue Mass Group, who believe the right thing to do is for legislators simply to vote down the amendment, thereby preventing its appearance on the 2008 ballot. A nice thought, but, as Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, tells the Boston Globe, there’s no way the pro-marriage majority can muster the 75 percent it would need to defeat the amendment.

Bay Windows editor Susan Ryan-Vollmar, writing for Media Nation, and the Outraged Liberal, in a post on his own blog, have called for the Legislature to defeat the amendment by any means necessary — that is, to defy the Supreme Judicial Court and kill the marriage ban by staying home or by voting for another recess. I agree. And though I don’t expect to change anyone’s mind, I hope that by the time you finish reading this, you’ll at least have a better understanding of what the real issues are.

I’m not a fan of argument by analogy. Often, it’s the next-to-last refuge of a scoundrel. (Here is the last.) But in this case I think it may be useful to offer a comparison to slavery.

Let’s say a group of citizens began a petition drive to enslave all Massachusetts residents of African ancestry. Let’s say they got more than enough signatures to place the matter before the Legislature. Now, many analogies fall apart for lack of logic, but I think this holds up pretty well. As with the anti-gay-marriage amendment, a slavery amendment would subject the rights of a minority group to the whims of the majority, and take away existing rights. And the analogy also works because the whole point of a constitutional amendment is that it can literally be about anything.

Now, it’s true that the Massachusetts Constitution does not allow citizen-initiated amendments about certain matters. (Read this and ask yourself how the anti-marriage measure passed muster, given that it would essentially overturn the SJC’s Goodridge decision, which legalized same-sex marriage.) And it’s also true that a state amendment to bring back slavery would be overruled because it conflicts with the U.S. Constitution.

But the principle holds. In fact, it would be perfectly legal to amend the U.S. Constitution to reinstate slavery. No, my analogy isn’t perfect, but it’s not bad. So bear with me and assume, for the sake of this exercise, that a slavery amendment can be properly put before the Legislature, and that 55 or 60 legislators — more than 25 percent — have already announced their intention to vote in favor.

What should a good, decent anti-slavery legislator do? Should he insist on a floor vote, in accordance with Article 48, and hope against hope that the amendment would fail to get 25 percent? Or should he do anything he could to kill the amendment, even if it means defying the Supreme Judicial Court and thus violating the Massachusetts Constitution?

I would suggest that every responsible member of the Legislature would take whatever action was necessary to kill such an amendment, and not worry about the niceties of Article 48. And I would hope that Blue Mass Group, Boston Globe columnist Scot Lehigh and other process liberals would applaud.

Now, if you think my analogy makes any sense, then you must conclude that the reason legislative defiance seems unwarranted in the case of the anti-gay-marriage amendment is that we do not take gay and lesbian equality as seriously as we do the rights of African-Americans. Thus, the matter before the Legislature today comes down to a moral judgment — i.e., which group we think is more deserving of our outraged indignation.

Two other matters:

First, several Media Nation commenters claim that referring to legislative defiance as “civil disobedience” bestows a grandeur that is undeserved, since there are no consequences anyone must pay for his or her refusal to vote. In fact, as the SJC pointed out, legislators can be voted out of office if their constituents don’t like what they’ve done. The fact that this rarely happens doesn’t mean it’s not a possibility. That’s how we hold people accountable in a representative democracy. We received a lesson in that recently, as the death of former president Gerald Ford occasioned a re-examination of his pardon of Richard Nixon, which almost surely cost Ford the election in 1976.

Second, as Lehigh, Globe columnist Jeff Jacoby and others have correctly pointed out, the Legislature’s refusal to act on the anti-marriage amendment (and many other amendments over the years) amounts to a de facto repeal of Article 48. I suggest that the way to fix this is (yes) through a constitutional amendment. There is a deep flaw in a constitutional provision that forces the Legislature to act against a majority of its members’ wishes and to suspend its own rules and procedures — such as the right of any member to file a motion to go into recess.

The 25 percent minimum should be eliminated and replaced with a simple majority requirement. That way, everyone would know the rules. And citizens would have a meaningful right to amend the constitution.

Update: Bay Windows is blogging the constitutional convention here.