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.

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