CONSTITUTIONAL RESTRAINT: Matt Taylor replies to Mark Barton

Mark Barton makes a convincing argument that most MA legislators who voted for the civil union proposal were motivated by anti-gay bias, as demonstrated by their previous voting record. This is enough to cast doubt on the state's argument in favor of the proposal, but which side of the case bears the burden of proof? If the state must prove beyond a reasonable doubt that the law's intent is unbiased, then the MSJC's ruling makes more sense. On the other hand, if the burden of proof is on those trying to overturn the law, it would seem the court has overreached.

In response to arguments for civil union that do not rely on bias, Mark goes on to say: "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. ... the intent will be to value opposite-sex unions more highly than same-sex unions. That's prima facie unconstitutional."

I'm not sure if Mark means that civil union inherently contains anti-gay bias (I disagree), or that unbiased arguments for civil union are overshadowed by biased arguments (I tentatively agree). This too may depend on where the burden of proof lies in finding a law unconstitutional.
posted by Eve at 6:20 PM | link

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