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Tuesday, March 30, 2004

Mitt Romney's Legal Chaos

It turns out that Attorney General Tom Reilly is blocking the governor's effort to stay the gay marriage decision, and the Globe coverage makes clear just how little legal sense the Romney administration is making on this one. A more basic point, though is that the "chaos" the administration keeps trying to scare people about really is nothing of the sort:

But Romney aides said the governor's legal argument has not been addressed by the justices: the notion that confusion and legal chaos would result if same-sex marriages are permitted beginning in May and then outlawed by voters in a 2006 referendum. ...

Reilly said he is not swayed by the arguments that gay couples who marry will be hurt and that the state will be in legal confusion if the voters later approve an amendment banning same-sex marriages. "Everyone is going into this with eyes wide open," he said. "There doesn't have to be any chaos if people do their job."

Dwight Duncan, a lawyer for the Massachusetts Family Institute and other groups opposed to gay marriage, agreed with Romney that allowing gay couples to marry beginning May 17, with the prospect that voters might ban gay marriage in November 2006, invites legal chaos.

Pardon me for not seeing how this is so utterly "confusing" or "chaotic." On May 17 same-sex marriage will become legal. If the amendment is passed on by the next legislature and approved by voters in November 2006, same-sex marriage would then be made illegal again. Thus same-sex couples would have 30 months in which they could legally marry in Massachusetts before we reverted to a system under which they could no longer marry. I doubt this will all play out precisely because of the 30-month window in which people will see gay marriage does not bring about the end of the world, but even if it does, I find it all far from confusing. The simple fact that some people may be allowed to exchange marriage vows during a window of 30 months isn't going to be the downfall of the legal system either.

What I find a greater threat of legal "chaos" is when we have a grandstanding governor holding press conferences during the evening news to try to pressure the court into deciding a matter a certain way using specious legal arguments that scholars overwhelmingly reject. There's also some danger in the perversion of our constitutional process in which state legislators pass along amendments they disagree with just to give the public something to vote on, which seems to have been the case with the decisive House Republicans in yesterday's vote:

In the end, the 15 agreed that approving a measure that they viewed as highly undesirable was preferable to the possibility that nothing would be sent to the state ballot for voters to weigh in on.

This isn't how the amendment process in the legislature is supposed to work. The requirement that consecutive legislative sessions pass an amendment before it goes to the voters is specifically designed to prevent the mindset that we should just have the public decide everything. The legislators are paid to make decisions on what they think is best for the state, not to abdicate that role to their constituents. Dan Kennedy is excellent on this:

The point is that the amendment process, though extremely easy, requires the involvement of the legislature. If ... the legislature's role is merely to wave the amendment through and let the voters decide, then they are arguing against any role at all. In the Hobbib-Morrissey model [gay marriage opponents], the fact that the legislature has to vote twice is nothing more than impediment, an anachronism, something to be set aside for the greater good of pure democracy.

That has it exactly backwards. The legislature is there to protect the rights of the minority. The drafters of the state constitution - headed by John Adams - gave an explicit role to the legislature so that our elected officials could exercise their considered judgment as to whether a proposed amendment might do so much damage that it should not even be considered by the voters. Only after legislators have had a chance to reflect - twice - is an amendment to go before the public. ...

Legislators owe us their wisdom, such as it may be, as well as the courage to act on that wisdom. Simply letting "the people" decide is an invitation to mob rule. It would send an ugly message that our elected officials see nothing wrong with oppression as long as it is "the people" who are doing the oppressing.

Also read Ben today for a discussion of Romney's ignoring the Tom Reilly issue in his presser last night and the hypocrisy of the Massachusetts police officer who is doing Bush ads blasting Kerry over taxes. Boston police happen to be among the highest paid in the country thanks to taxes that fund their pay.