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Legal Arrogance

One thing law school is quickly teaching me is how isolated legal thinking is from that of the rest of society. This isn't necessarily a bad thing, but people sometimes forget, usually when it's convenient for them, that this is the case. Take Joanna Grossman in her Findlaw column today:

The Massachusetts Supreme Court's Goodridge opinion was quite clear that it was denouncing the exclusion of gays and lesbians from the institution of marriage itself, not just the denial of the benefits of marriage. The Senate's "separate but equal" response was thus constitutionally insufficient, and rightfully rejected. Still, the ease with which it crafted and agreed upon a civil union law is a testament to the powers of social change: In just four years, a "civil union" has become a familiar, accepted relationship form.

No, it hasn't. What has happened is that a legislature attempting to implement popular opinion as much as it can given tight time constraints has tried to come up with a legislative compromise. Politically, civil unions aren't demonstrably 'acceptable' in Massachusetts, or gay rights activists would have had little problem achieving such a change without the courts, and a clunky marriage amendment wouldn't even be up for debate. Ms. Grossman may think what she wishes about whether this is legally reasonable or not, but to pretend that what is accomplished by highly educated elites well-connected to a system of power (and here I mean attorneys, not homosexuals, before anyone jumps down my throat) represents some kind of democratic 'social change' is deluding oneself. The legislature did what it had to because it was forced by the least democratic of institutions, not because the hearts and minds of the people of Massachusetts had changed.

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I think you would have a rough time showing that "what is accomplished by highly educated elites well-connected to a system of power" (and here I refer to the MA legislature) represents some kind of lack of social change. The MA legislature does not necessarily reflect the actual hearts and minds of the MA people.
But certainly you're not going to tell me that civil unions enjoy a vast groundswell of support in MA, that this support has increased in the last four years, and that the Court has courageously stood up to a legislature at odds with public opinion? While I agree that the legislature will be influenced by elite opinion, it's certainly closer to the hearts and minds of the MA people. Why would a bundle of legislators go to the problem of even proposing a marriage amendment if there weren't significant popular support for it? In other words, you're right, I'd have a hard time proving that. However, it's not my argument.
Oops. I do love a good tangent. I can't comment to the absolute level of support of civil unions, being very far from MA myself, but I would put forward that support for civil unions has increased in MA as it has in most areas - at least among lefties and centrists. I believe that those to the conservative end of the spectrum have been catalyzed by the civil union and gay marriage movement and legislators would risk a marriage amendment – regardless of the amount of support among the general populace – to remain in/enter the good graces of the conservatives.
Yeah... appealing to those damn Massachusetts Republicans... :) Sorry for being flip, but I doubt it. Of course, at this point we need some real facts, but I'm not convinced that there's widespread, or even increased, acceptance in Massachusetts. You're right, of course, that it's catalyzed the right, but I don't think anything has become more 'accepted' by the populace at large.
Admittedly this data is a little old (the poll was conducted Nov 19-20) but it was conducted after the court's ruling was made. Out of 400 Bostonians, 76% of respondents favored some sort of marriage or civil union rights for gay marriage. 44% disapproved of the governor's response and 53% oppose a constitutional amendment to ban gay marriage. This suggests that the highly educated elites are acting as a tool of democratic social change and that the MA legislature is in fact attempting to stand in the way - even though the hearts and minds of the people of MA have changed.
Entertaining, but: (a) what was the data from four years ago? Again, we're arguing for change, so you need two sets of comparable data. (b) the question regarding the governor's response is poorly crafted--look at the lead in. "Disapprove" is an acceptable response either for those who disapprove of his response of proposing a marriage amendment or those who disagree with civil unions. This is textbook on 'how to cook a poll.' Actually, the entire thing is an exercise in poll-cooking, Monk. Take a look at what isn't asked. No information on what these people think about the Supreme Court's decision, or indeed what they think about the rights of homosexuals to marry. (That would result in a lower apparent 'acceptance' rate in question one, since you have a questioning bias towards status quo.) The first question doesn't mention a constitutional amendment, and most of the negatives imply an open defiance of a court order--which many people would oppose even if they agreed with the issue. So, besides being a bad data set, it doesn't get around the primary problem: assuming there were great public acceptance of same-sex marriage, you'd be able to push it through the legislature. At the very least, you'd expect the MA legislature to roll over with only a token fuss. Not this kind of resistance.
As a Massachusetts resident who's kept a close eye on all of the polls in the local media, I think it would be hard to say there is a vast groundswell of public support for gay marriage. MA is a "bit" more liberal than the rest of the country on average, so the general gist of most of the polls is that about 50% of people in MA support some form of gay civil marriage or civil unions, hardly any kind of a political majority. The state constitutional ammendment could easily go one way or the other. That said, it really is the MA conservatives who are pushing for the ammendment. The very vocal voices pushing for the ammendment are the Catholic conservatives, and in MA this is not a group to be underestimated... Remember, that liberal as this state is, it does have a Republican governor and a Republican house speaker. They go to the trouble of proposing the ammendment not because it has vast support, but because it has a chance of passing with the public as evenly divided as it is.
The speaker of the MA House is NOT a republican, but a very powerful democrat. http://www.tomfinneran.com/about/intro.html He is, however, against gay marriages.

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