Wednesday, November 19

Back to National Implications - Has anyone else noted the weird inversion going on right now in the reactions to the Goodridge ruling? Many supporters of gay civil rights (including almost all the Democratic presidential nominees) are praying that Massachusetts can see its way clear to enacting some kind of separate-but-equal system like Vermont's. At the same time, our most fervant opponents -- the FRC, Gary Bauer, Tom Delay -- are delerious to proclaim actual gay marriage in MA.

Here's why: As Prof. Eugene Volokh envisions it,

The FMA is proposed and passes, because right now gay marriage is still not popular. The FMA prohibits all gay marriage, including that enacted by legislatures or the voters. Ten, twenty, or thirty years from now, when people no longer object much to gay marriage, gay marriage will be constitutionally banned, and the constitutional prohibition will be very hard to undo. And in the meantime, the symbolic message sent by the law will be "gay marriage is so bad that the Constitution outlaws it." [parentheticals deleted]

It's a worst-case scenario, but one that he thinks is "quite likely." I can't allow myself to be that pessimistic, but even the possibility poses such grave dangers that I question whether it was worth risking. This is especially so given an alternate-universe scenario where gay marriage rights were allowed to develop organically and be enacted legislatively, just as they have been in -- wait for it -- California. Well, it's a moot point now, so all we can do is gird ourselves for all-out battle to the finish with the forces of Mordor.

P.S. Ben, can you believe I posted praise for the Golden State?