JUDICIAL OVERREACH: The American Prospect vs. the Goodridge court

...The contrasting developments in Massachusetts and New Jersey illustrate the risks of turning to the courts to leapfrog public opinion in a democracy. Even though courts may be called "supreme," the people can overrule them, and on same-sex marriage they already have. After supreme courts in Alaska and Hawaii approved gay marriage, constitutional amendments in those states overturned their decisions. In contrast, Vermont's highest court gave the legislature the option of authorizing civil unions, and that legislation -- signed by Howard Dean -- seems likely to survive.

What was wrong with the Massachusetts decision, however, was not simply that it was blind to the likely political reaction. It was also unpersuasive. In its February "Answer" to the legislature, the court determined that civil unions would carry a stigma of inferiority -- a judgment about their symbolic meaning -- without any evidence about how civil unions would have developed in practice. States create legal rights and obligations, and civil unions would have equalized those. The administrative categories of government, however, are only one of many elements -- and not necessarily the most powerful -- in shaping social understandings. People create their own symbolism through ceremonies such as weddings and other practices, and nothing in the law authorizing civil unions would have prevented gays from investing the unions with all the symbolism of a marriage.

The Massachusetts judges and religious conservatives are joined in a kind of antagonistic cooperation. They agree that constitutional law ought to settle the question of same-sex marriage and are forcing Americans to deal with the issue in those terms. But the case for leaving controversies to politics and legislation, rather than fixing them in constitutional principle, is especially strong where public sentiment is fluid and highly charged. Legislation has the virtue of allowing for negotiation among elected representatives; a legislative compromise may be incremental, the losing side is more likely to accept the outcome, and the result may be both more stable and legitimate in the eyes of the public. The wide acceptance of New Jersey's domestic-partnership law exemplifies these advantages.

When reformers get into the habit of relying on lawyers and judges, they not only risk a self-defeating political reaction but may also lose the facility for building a majoritarian politics. That is surely one of the things that went wrong with American liberalism in the mid-20th century, and it would be a disaster to repeat that mistake. ...

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The afterword, on the FMA, is also quite interesting.
posted by Eve at 12:46 PM VOTE

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