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A blog 'for independent minds'
Concern for the Rule of Law
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Opinion page editor Rick Holmes and other writers blog about national politics and issues. Holmes & Co. is a Blog for Independent Minds, a place for a free-flowing discussion of policy, news and opinion. This blog is the online cousin of the Opinion ...
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Opinion page editor Rick Holmes and other writers blog about national politics and issues. Holmes & Co. is a Blog for Independent Minds, a place for a free-flowing discussion of policy, news and opinion. This blog is the online cousin of the Opinion section of the MetroWest Daily News in Framingham, Mass. As such, our focus starts there and spreads to include Massachusetts, the nation and the world. Since successful blogs create communities of readers and writers, we hope the \x34& Co.\x34 will also come to include you.
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By Rob Meltzer
May 15, 2014 6:10 p.m.



Rick has accused me of being overly concerned about jurisdiction, and I plead guilty to that charge. As a lawyer whose practices generally involves limits on government power, I do have a lot of respect for boundaries. Indeed, the entire US Constitution is about boundaries, as our almost every state constitution.

So, lest I be accused of political bias, let me repeat my oft-stated libertarian position on the issue of marriage equality: I firmly believe that a state cannot discriminate between individuals when issuing marriage licenses. Clergy cannot be compelled to perform marriages that defy established religious practice, but town clerks should not be allowed to inquire into the nature of the individuals seeking a marriage license. Personally, and from a libertarian perspective, I would prefer that all marriage “licenses” be abolished in favor of a system of registration of marriage, but I don’t care what the gender or species is  the couple. Nor do I have a problem with polygamy. Nothing wrong with marriage being the union of one man and two women or three men. And while we’re at, like most libertarians who follow religious practice which state that gay marriage and homosexuality are an abomination and that transsexuals are heretics, I’m not asking my government to enshrine religious practices into state law.

OK, with that out of the way, I’m really wigged out by what is happening in Idaho and Arkansas and other places where judges are striking down constitutional bans on gay marriage and clerks are giving out licenses like lolly pops while the crowds cheer outside. Let’s be clear about something–even if a law is deemed unconstitutional, there is something very unsettling about a single judge overturning the will of a majority of the people, and a crowd cheering at the result. Simply put, the remedy for an unconstitutional constitutional amendment is not to open the flood gates in the opposite direction, but rather for the judge to order the state legislature to act on the constitutional objection. Such a remedy is absolutely essential as a matter of law. More often than not, the right to marry is not simply a matter of issuing the license, but rather the process of viewing public policy through the lens of marriage. By way of example, a number of states are facing the conundrum that, while marriage licenses are being handed out, divorce remains based upon traditional gender roles. We are seeing a number of cases in which marriages are allowed between same sex couples, but divorces are not. And rights of children, property and so forth are equally gender based. Even Massachusetts has not yet worked out these problems.  Yes, discrimination is wrong, but for one judge to strike down a constitutional amendment while the infrastructure is not in place is a recipe for disaster. And before anyone asks, the notion of sending laws back to the legislature for a rewrite was common during the civil rights era. Proceeding with all deliberate speed is not the same as breaking a leg rushing to the license office.  In Idaho, a state which enacted much of its property law after 1912 with the enlightened idea of protecting women on the frontier, simply changing the definition of marriage threatens to undermine property title, community property laws and the entire public welfare system of the state. And, yes, I do understand Idaho law. I practice law in Idaho, and one of the things that shocked me when I took the bar exam was that Massachusetts wasn’t as enlightened as Idaho on the issue of protection of women.

Beyond anything else, what the judge is doing in Arkansas is dissing the people, bypassing the legislature and causing a disregard for the rule of law. Tossing out marriage inequality is one thing. Tossing out the rule of law, the separation of powers and respect for due process, is another.

 

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