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National politics State

Back Door Legislation or The Root of Judicial Activism

If there is anyone who still reads this blog they will be well aware that I have been lousy at posting anything in the last month or so. I have been working on various other projects and purposely leaving this site dormant for the present, but I am compelled to post after I heard that the Supreme Judicial Court of Massachusetts is hearing a lawsuit on gay marriage. The court is being used as a vehicle to try to get a 1913 law thrown out which prevents the state from issuing marriage licenses to couples who are not residents of Massachusetts if their marriage would not be recognized in their home states.The argument is that the law is being used to discriminate against gay couples. Unfortunately this is a case of throwing the baby out with the bathwater. If the law is being used to discriminate against gays then it should be applied equitably rather than being repealed. These plaintiffs need to prove that heterosexual couples who would not be allowed to marry a home are being given marriage licenses in Massachusetts.

It is easy to see that the agenda operating behind this is not deterred by state boundaries. This is nothing more than a step to legalize gay marriage throughout the country. If this suit succeeds there will be couples from around the country who come to Massachusetts to marry and then complain in their home states that they are facing discrimination. Nobody can argue that this is not the case because the plaintiffs include eight out of state couples. This will happen despite the fact that there is already a federal law stating that one state is not obligated to recognize marriages performed in another state.

I will attempt to walk a very fine line here. I do not wish this to be viewed as a homophobic posting. Unfortunately I cannot claim to know and love a large number of gay people (that would strengthen my argument) but I would hope that it can be said that I treat all gay people with whom I come in contact with the same respect that any human being deserves. I might add that this is the same respect which I withold from bigots of every type. I abhor bigotry and hope never to be guilty of it. That being said I want to address this suit in the light of judicial activism.

Suits like this are the very thing that give rise for judges to exercise any pre-disposisiton towards judicial activism. If this suit has merit the proper course of action would be to have the law rewritten or applied fairly. The plaintiffs have expressed their intention – which is to have the law annulled. If they fully win their case activist judges on the Supreme Judicial Court of Massachusetts can use it as an excuse to rule that the law be removed rather than corrected and enforced properly.

Anyone who nievely argues that this case stops at Massachusetts must ask themselves what a gay couple gains by going to Massachusetts to get married if they then return to their home state knowing that their marriage will not be recognized. The answer is that they gain nothing except more leverage in their fight to legalize gay marriage in their home states. This is not the correct way to go about changing the law. If you want a legal gay marriage move somewhere that it is already legal. If you want to legalize gay marriage live within the bounds of the law and push for legislation to make gay marriage legal where you live.

We have an estalished process for the passage of laws. If a majority of people believe in something it will become law. We have checks in place to minimize the chance for majorities to trample the rights of minorities, but the judicial system is to interpret law and not write it through opinion. If the 1913 law should be repealed that should happen through a vote of the legislature or a ballot initiative. Even Gov. Schwarzenegger understood that when he vetoed a bill to legalize same-sex marriage because the people of California had already passed a proposition stating that “only marriage between a man and a woman is valid or recognized in California.” The governor argued rightly that “We cannot have a system where the people vote and the Legislature derails that vote.” It can also be said that we cannot have a system where the people vote and judges derail the vote once it has passed by a super-majority.

Categories
politics State

The Central Issue

Midway through 2004 I talked about the importance of having a two party system in Utah specifically. The Deseret News now writes a story quoting Harry Reid saying the same thing on a national level. Senator Reid put it perfectly in saying, “Legislation is the art of compromise, and a strong two-party system is fundamental to our democracy.”

I was focused on Utah and I proved to be correct as Utah voted more overwhelmingly Republican than any other state in November. Only Washington D.C. was more partisan in their voting – 89% democratic. Now, even though I am no longer a resident of Utah, I still hope that the political landscape of the state can become more balanced so that real meaningful political discussion can take place. I would bet that if a study were done we would find a strong negative correlation between those states that have lively political debate and those states that have lively social problems.

Categories
National politics State

Mandatory Split

I have thought for a long time about changes we could make to our political system and what they would mean in reality. I have a new one. I wonder what the effect would be if each state were required to elect one democrat and one republican as their senators? From a very short-sighted point of view it would make very little difference from our current senate split of 50-49-1. Any ideas about what it would really mean?

Categories
politics State

Utah Race Defined

Now that the republican primary is over I can say difinitively who I am voting for in the governors race. I have spent months looking at everything I could find on the candidates and so far as I can tell the least promising republican candidate just won the republican primary so I’ll vote for Scott Matheson.In Utah that is not quite as bad as voting for a third party candidate because the democrats still have a slim chance of winning. This is not a state where every vote counts. The majority is overwhelmingly republican so that nationally both parties have eternally roped Utah off as being a given red state.

Right now I am voting for a change in the political structure of the state. We no longer have political dialog, we are stuck with republican diatribe. There is no discourse here. I understand that a huge percent of the population share common values on the largest issues, but that has stifled the discussion on what seems to be the second tier issues where there is not as much uniformity of opinion.

Somehow the political atmoshpere here has to change so that presidential candidates do more than fly over Utah on their way to California and, if we’re lucky, stop for fuel occationally. We also need to have more diversity of opinion so that there can be real discussion in our state legislature because of the uncertainty caused by neither party having an overwhelming majority.

With the same rules as the US Senate a democratic fillibuster on a key issue would last only long enough to count the first 60% of hands as 80% of the legislature voted to end the filibuster. In truth we have a one party state in a two party nation.