CONSTITUTIONAL SELF-RESTRAINT: Mark Barton replies to Ben Bateman

Ben Bateman: But self-imposed constitutional restraints must mean what the people who voted for them intended them to mean.

Mark B.: On the contrary, constitutional provisions, like lesser laws, must mean what they say, except where they're ambiguously worded or in conflict with other laws. No one to my knowledge has suggested a conflict
with another part of the constitution, and I'm afraid I can't take seriously the suggestion that there's any ambiguity. Making marriage opposite-sex-only is a perfectly straightforward violation of the letter of the law: "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." A man in Massachusetts can't marry a man because of his own sex--he is not equal under the law to a woman in that respect.

Now of course, it's a well-established part of the context of any constitutional provision that the applicable high court can grant limited
exceptions in the case of a compelling government interest. And Massachusetts voters may have been told that the MSJC would assuredly grant an exception for opposite-sex marriage if it were ever challenged. But the voters knew, or at least had no excuse for not knowing, that no one could possibly give a actual guarantee to that effect, at best a good faith assessment of probabilities. If they thought they were voting for an ERA with the implicit rider "except that the MSJC will always grant an exception for opposite-sex marriage", they were kidding themselves. They were trusting the MSJC not to keep SSM outlawed specifically but to do the sensible thing generally. And surely that's the whole point--if your self-imposed restraint has the implicit caveat "except that the person or institution we're trusting to shall always make an exception when we think it's important" then there's no actual restraint.
posted by Eve at 10:52 AM VOTE

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