Peder D4

Discussion of politics and other odious things

Wednesday, June 14, 2006

Procedural Arguments

There are also some important procedural questions that surround the gay marriage issue. I’d like to take some time to address those too. These aren’t necessarily left or right but they are important.
P1. Amendments are important/overkill – Why an amendment? There are laws that have been especially designed for this, so why go through the amendment process? The answer goes back to Roe v Wade. Both the left and right have learned their lessons well over the last thirty years and this is the result.
The lesson from the left is that the courts are an important battleground for policy issues. The lesson to the right is that they have to find an area that the courts can’t overturn. And voila, you get to the amendment process.
The whole process is very sad actually. The left has stopped trying to engage in discussion on this issue. Their opponents must be motivated by nothing more than hatred so there’s no reason to talk with them. No need to convince people, just call them names.
Meanwhile the right has seen that winning elections isn’t important for legislative goals, but only for judicial ones. If 70% of the electorate believe something, it doesn’t matter. If the correct four or five people believe something than it becomes the law of the land. And so they turn to amending constitutions. It’s hard for me to blame them. I do think that the proposed amendment here in Minnesota is overkill. It’d ban not only gay marriage but any form of civil union as well. Craig Westover argues that a better amendment would be:

The legislature of this state shall have the sole authority to define the legal requirements of a civil contract of marriage and the sole authority to define, by legislation, all other marriage-like relationships to be formally recognized by the state, as regards number and sex of the parties involved. Such definition shall not be subject to review by the judiciary of this state.

This provision does not prohibit any two or more individuals of any sex from engaging in independent contractual arrangements to achieve a marriage-like relationship. The recognition by the state of such a relationship extends only to the validity of the legal contacts in force, and no other rights or obligations of the state to the parties can be assumed.

I can get behind this. In democracies like ours, issues should be argued over and settled by the people, not by judges. What’s the point of the legislative branch otherwise?
P2. There’s more important work for the legislature to do – Usually what follows this argument is a laundry list of things like health care, the environment or war in Iraq. Different things motivate different people. For some the health care debate is vitally important to their everyday lives. For others (myself included) it’s a boring debate over wonkish policy details. That this issue has created such debate already should be an illustration of how important it is to many. How about a compromise? If no gay couple will seek to challenge existing law for the next decade let’s table this for the same time period and take a look at it then. What can be the harm if this isn’t an important issue?
P3. Existing law will protect marriage – This is a popular argument from the Strib’s editors and their choice of letters to run. It’d be easier to take seriously if one could believe that the editors and letter writers would support existing law during the inevitable lawsuits. Absent that it’s hard to take this in good faith.



Post a Comment

<< Home