by Barry Edelson


Democracy by Lawsuit

Congratulations. See you in court.


In the hour and a half that elapsed between the passage of the marriage equality bill in the New York State Senate last Friday night, and the signing of the bill into law by the Governor, you can be certain that lawyers representing opponents of same-sex marriage were already writing briefs to challenge the new law in court. To be sure, if the state had instead passed a bill outlawing unions between couples of the same gender, lawyers on the other side of the issue would be doing exactly the same thing. There is an assumption by proponents of this (or any other) issue that the legislature is doing the people's business when it passes a bill to their liking, and an insinuation by opponents who failed to win the day that the people's representatives acted against the will of their own constituents for reasons of incompetence, stupidity, or mere political calculation.

We might assume by the automatic filing of lawsuits that the courts are widely respected as a superior arbiter of disputes within the body politic, but we would be wrong. When a judge decides that the law of a particular state violates that state's constitution, as judges in Iowa and Massachusetts did by overruling bans on same-sex marriage in those states, and effectively establishing new legal standards by judicial fiat, advocates for the losing side decried these decisions as "judicial overreach" and "legislating from the bench." While judges were hailed for their wisdom in one camp, they were denounced for usurping the privilege of the people's elected representatives in the other. Had these decisions gone the other way, of course, the responses emanating from the mealy mouths of each side's respective spokespersons would have been most conveniently reversed.

So if legislatures are not sufficiently impartial to act on the people's behalf, and judges, even when they are truly impartial, are overstepping their authority when they do so, what about the citizens themselves? If actual voters — "the people" — should have an opportunity to vote on a measure through a public referendum, wouldn't we then have to accept the result with equanimity? Those on the losing side would have to acknowledge that, even though the outcome was not what they desired, it is the clearly expressed will of the people and we all just have to accept it. Not so fast: no sooner do the polls close than the briefs are already being written to block the offending act from coming into force. Take, for example, Proposition 8, which would have banned gay marriage in California. It was approved by the state's voters in 2008 but almost instantly entangled in a legal labyrinth from which few laws, or their mutual antagonists, emerge unscathed. After more than two and a half years, the legal status of couples married in jurisdictions, like San Francisco, which heretofore had permitted gay unions, remains unresolved.

If the legislatures, the courts and the people are all too fallible to be entrusted with the sacred task of passing the laws of the land, to whom then can we turn? There is one more option, more powerful than any of the others: amending the Constitution. In fact, 30 states have done just that on this very issue. Faced with the possibility that its legislators, judges and/or voters might have the audacity to decide the matter for themselves and legalize same-sex marriage, these states pre-empted any such effort simply by barring the passage of such a law before anyone could even propose it. (This may colloquially be called shutting the barn door before the horse is even inside.) No legislature can overturn it, no simple vote of the people can declare it invalid, no judge can declare it unconstitutional. Brilliant, yes? An amendment can only be undone by a second amendment nullifying the first amendment, a plausible but unlikely development.

But there's just one problem: who exactly amends the constitution in the first place? Isn't it the very same elected representatives, and/or the very same voters, or some combination thereof depending on the provisions for amending the Constitution that vary from state to state? Why is the judgment of legislators and the people who elected them insufficient in the one instance but inviolable in the other? If living and breathing human beings are not worthy of passing laws on issues of great social consequence — owing to their inbred idiocy, ingrained bias, unconquerable ignorance and intellectual sloth — isn't their unworthiness also an overwhelming argument against their being able either to allow or forbid themselves the right to do so?

The good news for gay and lesbian New Yorkers who have begun to plan for their nuptials is that amending our state's Constitution is more difficult than in many of the other states. An amendment must first be approved by two successive legislatures and then by a public referendum (or by a constitutional convention, an even more unlikely scenario). Since the law granting marriage equality to all residents of the state was just approved by both chambers of the state legislature, one of them even controlled by (gasp!) Republicans, the likelihood of an amendment ever making it to the polling booth is surpassingly small. It is also exceedingly unlikely that the Assembly, long dominated by Democrats, will vote to reverse this law now that it's been passed. And should some of the law's detractors attempt to overrule the legislature by putting the matter to a vote of the people, the children of same-sex couples as yet unborn will be old enough to vote before the case winds its way through the courts. The bad news is that New York has many, many lawyers, scores of whom are no doubt available to ride the judicial merry-go-round for as many years as it takes to beat the law into submission, one way or the other.

With heartfelt congratulations to our gay and lesbian friends, and all those who fight for the expansion of civil rights, let us temper our momentary elation with the knowledge that for every sweet victory in the "culture wars", an uninvited swarm of attorneys is buzzing outside the door, anxious to annoy your guests and eat all the wedding cake.

June 26, 2011



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