Marriage Rights – First Best Strategies: Law or Politics

Posted on April 7th, 2009 by Katherine Franke

In an exciting development in Vermont today, the Vermont House and Senate, by votes of 100-49 and 25-5 respectively, overrode the Governor’s veto of a law granting same sex couples the right to marry.  While this makes Vermont the 4th state to allow same sex couples the same marital rights as different sex couples, it is the first state to do so legislatively, and to have done so by such an impressive super-majority.  To my mind this is the ideal means by which this sort of law reform should take place – as a matter of politics, not as a matter of constitutional interpretation.

As we’ve seen in Hawai’i, California and in other states, turning to courts to pry open the jaws of state marriage liscense bureaus has a distinctly anti-democratic odor, and can result in mean-spirited backlash.  Of course, this is what the bills of rights in the state Constitutions are designed to do – provide a check on majoritarian rights-denying behavior.  It’s what Alexander Bickel termed the countermajoritarian difficulty in his book The Least Dangerous Branch.  Don’t get me wrong, courts can and should have the power to invalidate legislative acts that violate fundamental principles secured constitutionally, since, in our system of government and laws, the constitution is supreme.   But as politics, turning to the courts in these matters is the less ideal, second best approach.  Rather than have a simple majority of judges (sometimes unelected judges) stepping in to overrule what the majority of the people thought was the right answer to a hard social issue, it is without question better to have done the hard work of  gaining a right through the political process.

None of this is to say that the people of Vermont are in any sense “better” than those in Iowa, who just extended marriage rights to same sex couples by a unanimous order of the Iowa Supreme Court.  But rather, all other things being equal, the correction of injustice or the expansion of rights has, in a popular sense, greater legitimacy when undertaken as an expression of the changed sentiments of the people – as in “We the People” – through legislative action as compared with the law being invalidated from the top down by the courts.

Add a comment

Comments are subject to moderation and do not necessarily reflect the opinions of
Columbia Law School or Columbia University.



"Homeland" Security Abortion Rights Activism Adoption adultery Advocacy Affordable Care Act Alien Tort Claims Act Amicus Brief Asylum Bankruptcy BDS Bullying Census Politics Children Citizenship Civil Unions Clinic Columbia Law School Compulsory Marriage Condoms Contraception Contraception Mandate Cordoba House Criminal Law Cures for Homosexuality Defense of Marriage Act Disability Rights Discrimination Divorce Domestic Partnership Domestic Violence Domestic Workers Don't Ask Don't Tell Earth Day Economic Justice Education Egypt Elections Employment Discrimination ENDA Estate Planning Events Family Law Fellowships femininity Feminism Free Speech Gender and Technology Gender Identity Discrimination Gendering the Economy Gender Justice GSL Online Haiti Hate Crimes Health Care Hilary Clinton Hillary Clinton Hiring HIV HIV Discrimination Hobby Lobby Homelessness Homophobia Housing Human Rights Identity Politics Illegitimacy (sic) Immigration Reform In-ing Incest India International Law Intersectional Feminism Islamophobia Israel Jobs Justice Sotomayor King & Spalding Labor Trafficking Land Reform Law School Legal Profession Legal Scholarship Lesbian & Gay Parenting LGBT Parenting Marital Status Discrimination Marriage Marriage Equality Masculinity Medicaid Michelle Obama Migration Military National Security Obama Administration Obama Appointments Obergefell Outing OWS Palestine Parenting Pinkwashing Policing Politics of the Veil Polyamory Popular Culture Pornograpy Pregnancy Presidential Politics Prisons Privacy Products Liability Profanity Prop 8 Prosecutorial Discretion Publications Public Rights/Private Conscience Public Rights/Private Conscience Project Queer Theory Queer vs. Gay Rights Race and Racism Racial Stereotyping Rape Religion Religious Accommodation Religious Exemption Religious Exemptions Religious Freedom Restoration Act Religious Fundamentalism Reproductive Rights Reproductive Technology RFRA Romania Rwanda Sartorial Commentary Schools Sex Discrimination Sex Education Sex Stereotyping Sexting Sex Trafficking Sexual Assault Sexual Duplicity Sexual Harassment Sexual Health Sexuality and Gender Law Clinic Sexual Orientation Discrimination Sex Work Silencing of voices SMUG Sodomy Law Reform Solidarity Sports Supreme Court Surrogacy Technology Title IX Trafficking Transgender Uganda Uncategorized Violence Women and Poverty Women of Color Work Zimbabwe

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.