May 16, 2006

New Twists in "Kritarchy" for Equality

by PG

Same-sex marriage has been legal in Massachusetts for two years now, and while the state currently is more concerned about being flooded with water than with gay couples, the various reverberations of Goodridge still are being felt around the nation. Of particular note are legal challenges to the rash of constitutional amendments to ban homosexual unions that followed the Supreme Judicial Court's opinion, as well as to attempts to overturn the opinion itself.

In Massachusetts, a gay advocacy group recently argued that the state constitution says an initiative may not be approved for the ballot if it is seeking to reverse a judicial decision, which is what the proposed Protection of Marriage initiative certainly seems to do. I must say that Chief Justice Margaret Marshall's remark, that the attorney general’s pro-initiative position suggest that democratic initiatives could lead to a reversion to slavery and husband's rights over property, seems awfully dumb. The assistant attorney general Peter Sacks is either slow on the uptake or just eager to roll over for Marshall, as he agreed with her instead of pointing out that slavery is prohibited by the 13th Amendment to the U.S. Constitution, and that husband-only property rights likely would fail the heightened scrutiny accorded to gender-based rules by the federal courts. (Assuming that "husband" is meant to signify only and ever the male half of a pair. If couples could designate the "husband" and the "wife" at the beginning of each marriage without gender bias, that could provide a terrific explanation for something that has puzzled me: by law, how does a husband differ from a wife? and if they are the same, why is it a problem to have two husbands or two wives in a marriage?)

I am happy with the main ground for Goodridge, which is that to discriminate on the basis of sex with regard to whom a man or woman may marry violates the state's guarantee of gender equality. But if the people of Massachusetts want to write into their constitution that the exception to this rule is marriage, there is nothing more to be done in state court and we had better go to federal court and the legislatures.

And then in Georgia, where the citizens had passed a constitutional amendment (and where, incidentally, the state bill of rights says, "The separate property of each spouse shall remain the separate property of that spouse except as otherwise provided by law"), Fulton County Superior Court Judge Constance C. Russell* struck the prohibition on same-sex marriage down for violating the state constitution's single-subject rule for ballot questions. Though the linked article doesn't say, I'm guessing that the language upon which she based her decision was at the end of Paragraph II: "When more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately, provided that one or more new articles or related changes in one or more articles may be submitted as a single amendment."

The passed amendment doesn't seem to have been a change to any existing article, as the state constitution had heretofore left the subject of marriage alone except for the aforementioned bit about spousal property and another bit about jurisdiction over divorce cases. So the new language was plunked, somewhat ironically, into the Bill of Rights as its own new section IV. Ga. Const. Art. I, § IV, Para. I (2006):

PARAGRAPH I. Recognition of marriage
(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state.
(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such relationship.
Apparently all of this was presented to voters as a single proposal, with no opportunity for those who wished to vote for marriage-only-as-man-and-woman but not for no-same-sex-union-entitled-to-benefits-of-marriage, or for those who wished to vote for don't-go-bringing-your-fancy-out-of-state-unions-here but not and-don't-ever-try-to-get-one-here-neither, to make such distinctions. Whether many actually would is uncertain; given how unhesitatingly the original proposal passed, I suspect that putting a revised version on this November's ballot would just have the same effect of getting out the conservative base that the 2004 round of amendments did.

* What is it with female judges getting disproportionately out in front on same sex marriage? Are they just more aware that this is an issue of gender equality?

May 16, 2006 11:07 PM | TrackBack
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