CONSTITUTIONAL RESTRAINT: Mark Barton replies to Matt Taylor

Matt Taylor: In Mark's opinion, civil union is intended as a slap at gays, and he may be right, but this is a hunch, not a demonstrable fact.

Mark B: But I just did demonstrate it: a very large fraction of the legislators who ultimately voted for the civil unions proposal that finally passed had previously voted for more punitive proposals that would have withheld any recognition for gay and lesbian relationships. Unless the remaining moderates were particularly fervent in their neutrality, the intent of the hard-liners dominates. And I dispute that even the moderates were neutral--see below.

Matt Taylor: There exist good faith arguments for civil union that don't rely on anti-gay bias, therefore animus is not the only reasonable explanation for the proposal.

Mark B.: But it won't do for the arguments simply not to rely on anti-gay bias. The conclusions can't have anti-gay bias either. Take my favorite example of Elizabeth Marquardt, who I suggest is about as moderate as anti-SSM advocates come. I accept that she comes to the table with no a priori anti-gay bias. Nonetheless, in an attempt to do something for children, she wants to make opposite-sex marriage a "norm." She hastens to say that she doesn't want to stigmatize gay people, but there's just no getting around the fact that she wants to herd people towards marriage by making it the most prestigious thing around, and she wants gay unions to have a different name so that they can't compete in this respect. To the extent that Elizabeth recruits some legislators to put government endorsement on her scheme, their contribution to the intent will be to value opposite-sex unions more highly than same-sex unions. That's prima facie unconstitutional. If Elizabeth wants to argue that it should be allowed as an exception because it furthers some compelling government interest, that's entirely legitimate, but her arguments should have to go through the same process of strict judicial scrutiny as in the initial trial. Mere good faith on her part or doesn't cut it. So unless Matt can point to an example of someone who's even more gay-neutral than Elizabeth, and argue that they are representative of the moderates in the Massachusetts legislature, I suggest that settles it. The intent was discriminatory and no new arguments demonstrating a rational basis (much
less a compelling state interest) were offered. Therefore, legally, the MSJC should not have ruled other than it did.
posted by Eve at 4:47 PM | link

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