Checks and Balances

So, I’ve been getting myself edjumacated on the Gay Marriage issue, and I’m a bit confused on how the government system works in our state. So, I’d appreciate someone helping me figure out how the process of legalizing Gay Marriage in Massachusetts worked.

  • The Massachusetts SJC decided that the Marriage laws in Massachusetts were unconstitutional. How do they manage to tell the Legislature to change it? Had they not changed the laws, what would the consequences have been? If Gov. Romney had vetoed the change, would he have been held in contempt of court?
  • It’s my understanding that government branches are set up as a system of checks and balances, to keep any one branch from having too much power. In this case, the courts were changing what the Legislature was doing. What’s the system in place to keep the courts from having too much power? That is, since I’ve been disagreeing with the decisions that the courts have been making, what actions can I as a citizen do to try to keep the courts in check? (I understand that this may be indirect. I think I’m looking for an answer of the form “Vote for candidates for office X that support doing Y.”, but I’m not sure.)

I’m primarily focusing on the state level of government here, but input on the federal level is also appreciated.

17 thoughts on “Checks and Balances

  1. I am not really qualified to answer your question, but if I may answer out of a mild naivete…

    There are multiple checks on the Judicial system. First and foremost is in what they are capable of doing. They cannot create oppressive laws, only strike down those that cannot, in the justices’ opinions, reconcile with the constitution.

    The second check is that the Governor appoints the Justices.

    A third check is the Bill of Address. As I understand it, if both the Senate and House of the Massachusetts Congress decide that a justice has been truly derelict in his or her duty, then they can oust a justice, even the Chief Justice, from his office. It’s much easier than impeachment, and this would be your way to go.

    But you know what? Nobody who’s anybody is seriously considering that. Virtually no one thinks the judges have been derelict in their duty except for a small group of very vocal knee-jerk fundamentalists (no offense). The Constitution of Massachusetts can be reasonably interpretted as now allowing a discriminatory institution. Surely you must agree that marriage as defined between a man and a woman is a discriminatory institution, even if you don’t find such discrimination immoral. (Yes, I agree, discrimination has received more than its fair share of bad connotations.)

    So the answer here is a change in the Massachusetts Constitution, to change the clauses with which the Justices back their arguments. But nobody’s seriously considering it, really. And I think for a good reason. It’s a lost battle. I would suggest that your time would be better spent advocating the privatization of the religious institution of marriage, rather than futilely attempting to make the “moral minority” trump the authority of the current political atmosphere.

  2. Basically, the way one overrides the SJC is to have an amendment to the Massachusetts Constitution drafted and passed. Its hard to do, since it requires an ungodly majority of the state to be behind it. I don’t think there is any plan to propose such an amendment, since nobody really wants to sponsor a constitutional amendment that’s almost certain to fail catastrophically.

  3. Well, it may be discriminatory, but only in the same way that it preventing me from marrying my brother or a 2-year old child is discriminatory.

    And it was my understanding that a state marriage amendment did pass, disallowing gay marriage but allowing for civil unions. It has to pass the Legislature again next year and then would be on the ballot in November 2006. Of course, those of us against civil unions (since they would cause the same societal problems as marriage) can’t really vote for that in good concience either… Although voting against it would be construed as voting for what we’ve got now.

    And I do take offense to your comments. The polls show that a majority of the state is against gay marriage. It’d be one thing if the people got to decide, but it feels like we’re living in a state by the courts, of the courts, for the courts.

  4. Answer to part1: The courts are the interpreters of the law. Because of that, the courts don’t have to have the legislature change laws. They simply change the legal parse tree. So the next time a town hall clerk denies a gay couple a marriage license, the court orders them to do it. If they refuse, the clerks are held in contempt.

    Part 2: There are two ways the governor and legislature can change the courts: Constitutional Amendment or rewrite of the offending laws, and appointment of different judges / impeachment of the existing judges. The amendment process is taking place. But impeaching a judge for reasons of pure politics is not only extremely difficult, it’s dangerous. The next time some judge has to choose between what is right and what is popular, they’ll remember what happened to the last guy who made that call.

  5. actually it only takes 3 simple-majority votes.
    One from the nth Sitting of the Legislature.
    One from the n+1th Sitting of the Legislature.
    One from the voters of MA.

    And the anti-gay-marriage amendment is already passed the first vote.

  6. you’re also a little confused as to who was overruled. The Dept. of Public Health is part of the executive branch. They’re the ones whose decision was overruled. The legislature doesn’t have a law on the books stating that explicitly defines marriage as between a man and a woman. So the legislature was unaffected. The executive branch had to change its policy.

  7. I never said the majority was for gay marriage. I suggested that the only people who wanted the justices impeached for their ruling are a bunch of politically-charged Fundamentalists whose positions are wholly insupportable.

    And while it might have been inferred, I didn’t say that there wasn’t serious support for an amendment, just nothing to strike down the the non-discrimination clauses. The amendment, as passed, isn’t all that horrific, and its endorsement of civil unions, while not as complete a solution as abolishing marriage at the government level, is a good step towards equal protections.

    Don’t let your community get you all riled up, Pete. The courts’ rulings are a reasonable interpretation of the law. Stick with the process and see if you can get the law “corrected.”

    Let me encourage you to all-together drop this notion of conditioning a “proper” society through government institutions. You once gave me the impression that you thought this reasonable.

  8. Just a minor addition — a Bill of Address isn’t an impeachment, not being criminal in nature, and only requires a simple majority in the House and Senate. I think I read that it’s been used 6 times in the history of Massachusetts.

  9. I see. But had the legislature passed such a law, it couldn’t be enforced anyway?

  10. no, it couldn’t. Because when the courts changed the parse tree, it applied to both executive decisions and statutes.

  11. Well, certainly a part of government is trying to keep some basic morals. The government enforces laws against murder and stealing, for instance. One could argue that the government is taking away “my right to steal”. But of course, everyone laughs at that since people generally have a consensus on morals.

    And now that I’ve learned more about the effects of gay marriage legalization in other countries, and what’s been happening so far in this country, I’m quite scared at how this will be affecting my family. I could describe more here if you want, but I wanted to keep this entry focused on my learning the legality of what has already occurred. I’ll save my reasons on why I think it’s a Bad Idea for later. (But soon, I promise.)

  12. certainly a part of government is trying to keep some basic morals

    Am I to infer from your use of the word “certainly” that you haven’t thought of other possibilities? I thought we’d discussed this on several occasions in varied company.

    It could be readily argued that the key role of government is not to enforce morals, but autonomy. Keep your hands off and observe your contractual obligations, and the police won’t molest you. Under such basic constraints, people can have and entertain any number of values without directly creating trouble with those who disagree with their values.

    So while I’m not in the least bit interested in the “That’s an abomination; let’s ban it,” approach, I am quite interested in how this affects your family, as that does become a question of autonomy.

    Sadly I see where this is going, and that the issue is quite complicated. I have a hunch that this discussion will no doubt bring up the mention of school privatization, which, while fun to talk about in theory, is so unlikely at this point that we’ll all be dissatisfied with the final social outcome. But like you say, that’s another discussion.

  13. You could argue that homosexuals, etc., may harm themselves, but until you prove that they harm non-consenting parties, you’re out of luck. From my understanding, few people consent to having their belongings stolen. And if they do, then the “theft” is not a crime.

    How many people go to prison for attempted suicide?

  14. Why do you value autonomy? How is autonomy not a moral issue for you? Some countries place much less value on autonomy; it’s a cultural difference. Why are you trying to impose your idea of what’s right for people on the government?

  15. How are people supposed to choose “what’s right” for them if the government doesn’t let them? The idea of relative autonomy is a pesky problem associated with livinf in a Democracy. No one is making you divorce Pete and marry a lesbian. No one’s making your church do anything it doesn’t approve of either.

  16. Two Words: Moral Volition

    An autonomous society imbues all its members with the trait of having full moral volition. If a set of moral behaviors is required, then how can any person be said to be morally upright? Is it morally upright to do what is required in order to not get beaten? Clearly, autonomy is a necessary precursor to a genuine personal morality. (This notion falls in line with the typical explanation for why God permits free will, and why hell is properly considered a consequence rather than a punishment.)

    If someone’s behavior doesn’t directly affect you or others, would you force them to change their behavior at the tip of a gun? Because that’s what happens when you pass a law.

    That said, yes, autonomy is a choice. But I think you, me, Pete, or most people we know wouldn’t harm someone for transgressing anything *but* autonomy.

    If you think marriage belongs to God, then for Christ’s sake, take it away from government and give it to a more appropriate authority like the church, assuming some worldly infrastructure is even necessary.

Comments are closed.