Wednesday, May 6, 2009

Maine: Legalizing Gay Marriage the Smart (and Correct) Way

I am overjoyed to find this article detailing that the state of Maine just passed a law legalizing same-sex marriage. And they did it the smart and correct way - which is great for a person like me, who supports gay mariage rights but disagrees strongly with the "legislation by judicial fiat" approach.

Several times I have been asked to participate in signing petitions voicing support for x state's attempt at "legalizing" gay marriage. Each time, I have been caught in a quandary. I strongly feel that states should make marriage laws as diverse as possible, stopping short of sanctioning coercion. (In fact, I question what qualifies the state to decide who we can and can't marry altogether.) At the same time, the libertarian principal I base that on also leads me to a principal in tension with the previous one: that legislation should be legislative and not judicial. Thus, I supported the idea that New York should legalize gay marriage, but was angry as hell at the idea that the judiciary could have the power to override a legislative matter that had NO CONSTITUTIONAL BEARING.

So, I am pleased to see that Maine, following the leads of Vermont and Connecticut, in signing a bill into law legalizing the ability of gays and lesbians to marry. One of the reasons I am pleased about this, in fact, is because when the decision is legislative, critics cannot say - as they often do! - that the bill is unrepresentative of the will of the people. per our democratic republican process, the very fact that these laws were enacted by the congress means that they were conducted properly and, should the people disagree, the people may vote the candidates out of office or petition to those candidates.

And the fact that these laws are enacted properly - by elected representatives - is also to be noted because this trend means that those who live in highly conservative states should not have to worry about the state judges usurping the authority of theiir representatives. In other words, as much as I like the idea of gay marriage being legal, I do not believe that it should be legal in states that do not wish it to be legal. Per the constitution's 10th amendment, the issue of marriage laws is deferred to the states. Until the 10th amendment is undone (or a gay marriage amendment pro- or con-) is added to the constitution, I think it would simply be unconstitutional to force states to legalize (or illegalize) something supported by the representatives.

So, Maine has done the smart thing here. I, for one, am overjoyed. HOpefully other states follow suit. And maybe someday, we will allow gay people to give blood.


  1. Maine Gov. John Baldacci said gay-YES!
    Same-sex marriage became legal in Maine on Wednesday as Gov. John Baldacci signed a bill less than an hour after the state legislature approved it.
    Maine Gov. John Baldacci signed a bill Wednesday legalizing same-sex marriage.
    The survey's sampling error was plus or minus 3 percentage points.
    See the actual video.

  2. I'm glad somebody's mentioning the legal ramifications. We get a lot of emotional jury rigging (fittingly enough) in the courts so that the outcome is whatever people feel is "fair" in one case, regardless of what the law says, and then it sticks as a precedent.

    However, if this is a question of civil liberty, then it's not up to a majority to decide. We vote on restrictions, but we're supposed to be guaranteed liberties. And I'm not a big fan of judicial review, but I'm not sure anybody else is qualified to determine whether it is a question of civil liberties.

    OTOH, I can't see how the judicial branch would be qualified declare gay marriage *illegal*. I would only expect them to either declare it unconditionally legal or defer to the legislative branch to decide.

  3. David,

    The reason it is up to the states and legislatures and not a matter of statutory law is that the tenth amendment to our constitution says that issues not mentioned there are deferred to the states (and only to the people if the states choose to stay silent). The states all have laws governing who can marry who. Thus, it is a policy for the legislature, not states.

    I understand the desire that it be a civil liberties matter, but it simply isn't because of what the highest law of the land says on the matter. It is, in that respect, analogous to the issue of abortion, which is also supposed to be a state-controlled issue under amendment 10.

  4. Kevin, another Amendment that some have said applies to this issue is the 14th; specifically, the "equal protection" clause.

  5. Kip,

    I see the equal protection clause differently. The equal protection clause mandates the 'equal protection of the laws,' and not that no law can only pertain to certain groups.

    But as Supreme Court Justice Hugo Black (a favorite of mine and ardent textualist) said, the equal protection clause is so impossibly vague that it is best to minimize the necessity of basing rulings on it.