MASS DELUSION IN MASSACHUSETTS?: Mark Barton replies to Ben Bateman

Ben Bateman: Did the state of Massachusetts suffer a wave of mass stupidity or self-deception in 1976?

Mark B.: Note that I don't suggest anything of the sort. I do think that the language is sufficiently blunt that it cannot be plausibly be read as "equality under the law shall not be denied or abridged because of sex except that men shall be disallowed from marrying men and likewise for women". And precisely because I think it would be stupid to read it that way, I trust that the people of Massachusetts didn't.

Rather, I presume they understood that it meant what it said, but that exceptions would be granted where the government could demonstrate a compelling state interest to the satisfaction of the MSJC. That is, I presume that they understood that they were renouncing power to micromanage such matters for themselves and the legislature and trusting to the MSJC to do the sensible thing in disputed cases. This after all would be the only sensible spirit in which to approach a self-restraint exercise. Moreover it would have been a reasonable expectation at the time that the court would of course make an exception for traditional marriage. After all, homosexuality had only just been delisted as a mental illness and a sodomy law was still on the books.

Now of course, I think the natural reading with respect to marriage is obvious, and a majority of the MSJC agrees with me. Moreover several other state high courts have interpreted similar language in the same way. However, even if we allow for the sake of argument that there's reasonable doubt about opposite-sex marriage in particular, this is just the tip of the iceberg. The language is so blunt that many traditional practices are clearly contrary to the letter of it, including many eminently sensible ones such as segregated public toilets and sex-specific medical treatment. The voters really would have been stupid if they didn't get the hint after all these additional examples.
posted by Eve at 2:27 PM VOTE

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