DAMN THOSE LEGISLATIVE ACTIVISTS!

DAMN THOSE LEGISLATIVE ACTIVISTS! You have to hand it to Mitt Romney --like so many opponents of same-sex marriage, he's principled. These decisions should be left to the legislature. Unless, of course, the legislature reaches an outcome you don't like, in which case the executive can veto the legislation and urge that it be resolved by the courts. Or, in Romney's case, when the legislature give you the wrong answer, you return to the courts, claiming another kick at the can because the legislature has used the method it usually uses to defeat enactments rather than the method you'd prefer. Although somehow I doubt that people who (selectively) decry "judicial activism" will object to this attempt to use the courts to "thwart the will of the people." As for the chances of the lawsuit succeeding:

Lawrence M. Friedman, a specialist on Massachusetts constitutional law at the New England School of Law, said the court must decide if the State Constitution requires the legislature to vote. Professor Friedman signed a brief supporting same-sex marriage in 2003 but has not been involved in the issue since then.

�This case is not about same-sex marriage,� he said. �This is a case, first, about what the legislature is required to do, and second, if there is anything the court can do about it.

�It�s not at all clear to me how this is something the court can remedy. It doesn�t seem likely to me the court will order the legislature to take a vote or subvert constitutional procedures and just put it on the ballot.�

The issue is straightforward. The countermobilization myth notwithstanding, supporters of the court's ruling that the exclusion of gay people from marriage benefits was unconstitutional have picked up support in subsequent elections. The legislature considered the measure and then predictably decided not to let an amendment attempting to overturn the decision onto the ballot. Tough--better luck at the track! What is useful about this episode is that it provides yet another example that conservatives like Romney don't object to the court's equal protection rulings because they're opposed to courts "interfering" in the legislative process, but because the courts produced the (politically) wrong answer.

-- Scott Lemieux

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