Three Years of Hell to Become the Devil: Welcome to the Kritarchy of Massachusetts

As just about the entire world knows, today Massachusetts starts allowing gay marriage, as imposed by judicial fiat. I have a lot of strong feelings about this, but curiously they're mostly political: over the last year I've watched everything I despise about the judiciary run amok.

The really disappointing thing to note is what the kritarchy has wrought. We're in the midst of a presidential election. This story is being carried on the Washington Post. It's in the New York Times. It's virtually everywhere, with two conspicuous absences.

Nothing on John Kerry's website, nor his blog. (If you want his opinion on the issue, you can visit this rather deeply buried page. Note that the issue is hidden under an acronym.) Andrew Sullivan and Chris Geidner (along with everyone else with a pulse and a calendar) have been quick to draw a comparison between Brown v. Board of Education and what's going on today... but Kerry, celebrating Brown in Topeka, Kansas, doesn't seem to have gotten the memo.

The same stark silence sits upon the Bush site, his blog, or at the White House. [1] You see, this is one of those issues where there are votes to be lost on either side, a fudge is an admirable stance, and... oh, yeah, it's been taken out of the realm of politics anyway by the men and women on the SJC bench.

I've opposed Goodridge from the beginning, not because I gave two hoots about who gets married to whom, but because the way this change has occurred weakens the fabric of our democracy. Congratulations, Supreme Judicial Court of Massachusetts: you've made yet one more issue that--at least in the realm of politics--dares not speak its name.

[1]I'd give you a link to the President's position on the matter, but the Bush website is so godawful that trying to find an issue is more trouble than its worth. I looked under "Compassion," the general catch-all for social policy, for a while and gave up.

Comments

I find it difficult to respect your "I don't give two hoots" position. Your credibility suffers when you argue for a more simplified, majoritarian sort of government than the one we actally have (and the one thankfully provided for in the Constitution), but express apathy in the face of an issue that doesn't directly affect your own life. The courts are there largely to check and balance the power of the majoritarian herd, which generally evinces as little empathy as you do when confronted with an issue of little or no concern to their daily lives.

Posted by: Chan | May 17, 2004 1:08 PM

The courts are there largely to check and balance the power of the majoritarian herd See, I get suspicious whenever someone starts talking about a 'majoritarian herd.' Because the opposite of a herd is an elite, Learned Hand's once-afeared 'Platonic guardians.' Nonetheless, if the guardians happen to agree with you, I suppose it's much less noxious, eh? Besides, I'm hardly arguing for a radical concept of a 'more simplified' form of government than is commonly conceived. Certainly, the view expressed above would be in line with the Goodridge dissent--it's not like this wasn't a split opinion.

Posted by: A. Rickey | May 17, 2004 1:17 PM

"Because the opposite of a herd is an elite, Learned Hand's once-afeared 'Platonic guardians.'" That's not quite right. The opposite of the "majoritarian herd" I'm talking about is the less-than-10 percent minority of gay and lesbian people you seem to dismiss as worthy of constitutional protection. Yes, the 'learned elite' support said protection, but this is an instance of the of the strength of our constitution and governmental system, not the sort of Constition-weakening, Democracy-threatening catastrophy you imply.

Posted by: Chan | May 17, 2004 1:36 PM

How exactly does this "weaken the fabric of our democracy?" The mere fact that politicians attempt to avoid a politically-sensitive issue doesn't mean it shouldn't be addressed. If anything, I think you have a situation here where the judiciary makes the legislature address a politically-sensitive issue instead of avoid it. In fact, that's the only real decree I see in the Goodridge decision. They've simply said you can't discriminate. The legislature SHOULD be the ones to address the issue, but they have to do so in a manner that is not facially discriminatory. I feel the same way, and I have yet to hear a compelling, non-arbitrary justification for the discrimination. Marriage is a particularly tough subject because our feelings are deeply rooted in religion, tradition, and morality. For our purposes, however, we must necessarily decouple the civil and religious aspects of marriage. We're talking about marriage in the eyes of the government (and its accompanying rights) - no one is saying the Catholic Church needs to recognize homosexual marriages. "The history of our nation has demonstrated that separate is seldom, if ever, equal." Opinions of the Justices to the Senate, 802 N.E.2d 565, at 569.

Posted by: Tim Marman | May 17, 2004 3:48 PM

Tim: "Making" a legislature address a question such that they have only one option is a ridiculous construction of events. The legislature couldn't 'address' the topic of homosexual marriage, because there was only one outcome it could legitimately reach. The fact that you "have yet to hear a compelling, non-arbitrary justification for the discrimination" is, frankly, irrelevant. First of all, it's a dodge: any reason put forward by your opponents you will simply dismiss as non-compelling or arbitrary. Some quite smart folks have put forward quite a few reasonable arguments against gay marriage. Whether you consider them 'arbitrary' or not does not mean they are any less important. All it means is that they'll never be addressed, because the SJC took it out of the hands of the legislature. Chan: Again, you merely beg the question: is the protection to be afforded to that "less than 10% minority" a constitutional matter? And if so, who decides? I haven't stripped anyone of their constitutional protections, except inasmuch as a robed-elite has decided that, as of today, a group is protected. Nonetheless, your choice of words--herd--is just so wonderfully telling. You do know that 'herd' consists of your fellow citizens, correct?

Posted by: A. Rickey | May 17, 2004 5:42 PM

I'll admit up front that I don't know beans about law, yet. And though I've read the constitution, I don't begin to understand all the ins and outs of it. However, I guess I'd have to agree with the folks who see the courts as a check or balance against the tyranny of the majority. From my perspective, it's possible for the majority to be wrong, and it's possible that what the majority wants is the exact opposite of justice. So for my part, I'm glad the courts decided as they did in this case. Otherwise I might not have any hope of being anything other than a second-class citizen in my lifetime.

Posted by: Terrance | May 17, 2004 9:34 PM

The legislature couldn't 'address' the topic of homosexual marriage, because there was only one outcome it could legitimately reach.That's not true. The legislature had an infinite number of choices; the courts just removed one degree of freedom. Before Goodridge, the legislature could decide what to do about same-sex couples separate from their decisions of opposite-sex couples. Goodridge didn't mandate marriage for same-sex couples -- it required that same-sex couples got exactly what opposite-sex couples got. The Massachusetts legislature had an infinite number of choices as to what they could do with opposite-sex couples. They could well have said, "Okay, nobody gets married in Massachusetts. No joint benefits for anyone!" They could have said "Okay, it's civil unions all around." The fact that politically they couldn't make those moves speaks to the importance of those benefits, not any strictures placed by the court. If it's so important you can't keep it from straight people, it's much harder to argue that gays can't get it, either.

Posted by: Heidi | May 17, 2004 9:56 PM

However, I guess I'd have to agree with the folks who see the courts as a check or balance against the tyranny of the majority. But then, other than the fact that you agree with it, what is so wonderful about the tyranny of this minority? Look, let's leave aside the fact that one may like the result: I'll even grant you that. Simply put, without the SJC decision there certainly was a chance of things changing within your lifetime. Every chance: shortly after the SJC decision, Delaware legalized civil unions. The debate was going, things were changing. Sure, it wasn't always just, it wasn't always perfect. But that 'tyranny of the majority' you're talking about? That's democracy. That's people expressing who they are in a self-governing republic. That's us deciding who are leadership is, and through debate--in the media, in the legislatures, at the polls--deciding how we want to live. Now, that's gone. There is no debate, no discussion that can be had in a public forum that may be of any avail. Instead, we're left with the wisdom of Solons as to what must be done. Heidi: The Massachusetts legislature might have eliminated all civil marriage. It might have legislated about the ownership of the moon, as well. But what it could not do was define "marriage" to mean what it has throughout almost all of human history: the union of a man and a woman. And this redefinition--under, mark you, rational-basis scrutiny--was made by a set of judges tasked with making the Massachusetts government one of laws, not of men. What changed with Goodridge? Not the law--not a single piece of text changed. Instead, a word was made to mean one thing on Monday, and another on Tuesday. Your point, to the extent that it is true, merely becomes trivial. Yes, they had a 'choice': they could have dissolved the institution of civil marriage. (This is not, incidentally, an 'infinite number of choices.') But the chaos that would have caused, within 180 days with almost no debate? That's no choice at all.

Posted by: A. Rickey | May 17, 2004 10:06 PM

I guess it comes back to the slow vs. rapid social change argument. The Massachusetts Supreme Court did in just a short time what would likely have taken another 20 to 30 years to accomplish, if then. I suppose it's only natural for a group of people who are suffering discrimination or other injustice to desire a faster method of relief; just as natural as it is for those who benefit from the status quo to be reluctant to change it in a way that requires them to give up or share what has been their exclusive priviledge thus far. At the end of the day, what I want is this: I want the same rights and protections as any other citizen; I want my family to have all the same rights and protections as any other family.

Posted by: Terrance | May 17, 2004 10:58 PM

And you know what? Until very, very recently (in historical terms) everyone just 'knew' that those dark folks (not just blacks, browns too!) were 'inferior'. And if you need me to provide citations for THAT being the majority view in Europe, the US and Asia throughout most of history...well you need to read more history. And of course pot is 'evil' and makes you 'murderous', and women aren't smart enough to do "men's work" in the office, and of COURSE kings have a Divine Right to Rule... Am I getting through here? Tradition, 'common sense' or 'god given morals' are NO guidebook for liberty, decency, or what's right. Now, get back to me about what's Constitutional someday when the Commerce Clause is interpreted to mean what it did before the New Deal. Oh, and a true kritarchy looks nothing like MA. Under one there are no coercive govt. actions except those judgements of a court that both parties to an action find suitable. It's a type of quasi-anarchy with consensual forums for judging 'cases and controversies', as you lawyer type folk would put it. You can refuse to appear, but then you get shunned.

Posted by: David Mercer | May 18, 2004 1:24 AM

Oh, and one more short additonal rant before I go. If you're really worried about 'the fabric of our democracy', go read Blackstone and what he has to say about juries, and in general the history of the jury and it's evolution in England. If you do that, or already understand where I'm going with it, you'll weep, as we have already fallen under tyranny. Sound like strong words? Not if you know the true function of the jury, which most certainly is NOT merely to assess the facts regarding the law in a case.

Posted by: David Mercer | May 18, 2004 1:29 AM

Tony wrote: But that 'tyranny of the majority' you're talking about? That's democracy. That's people expressing who they are in a self-governing republic. That's us deciding who are[our] leadership is, and through debate--in the media, in the legislatures, at the polls--deciding how we want to live. Yes, but America is not a democracy. It's a republic, & we have a Constitution, which sets aside certain state powers & actions as simply beyond the pale, no matter the wishes of shifting ephemeral majorities, and it's subject to change only after approval by super-duper majority consensus through the ratification process. I'm no expert on Massachusetts' Constitution or its judiciary, but I have to imagine it empowers its judiciary to interpret its provisions. If the people of Massachusetts don't like it, they can amend their constitution, or elect politicians who will appoint judges who take a different view of their state's founding document. If citizens elsewhere don't like it, and fear its spread to their states, they have the option of passing their own constitutional amendments (IIRC, my wondrous home state, Nebraska, did just that in 2000). And, of course, there is the option endorsed by the President--an amendment to the federal Constitution. I fail to see how that process differs from what you want--namely, a national discussion & debate on how we wish to live (yes, I saw your post on the lack of such positions currently on campaign sites, but come on. it simply is the topic of debate--what we here are doing, and it's being done thousands of others too--and the President's firm support of a proposed constitutional amendment, and Kerry's firm opposition to it, make things pretty clear (as does President Bush declaring, during the 5 year anniversary of Matthew Shepard's death, a Marriage Protection Week, a gesture I simply cannot believe was accidental, and which surely qualifies as hateful & despicable). Lastly, you ask "what is so wonderful about the tyranny of this minority". This tyrannical minority can fairly easily be reversed, if it be so utterly tyrannical, senseless, unjust, irrational, absurd, etc etc., the outraged & injured majority can respond--through the processes outlined above. A minority so aggreived is doomed to suffer. Our system is geared to err in their favor, and I think rightfully so. It's not perfect, but I'm willing to entrust the courts with this profound responsibility, trusting that our politicians staff them with responsible, principled & exemplary individuals. And, should our leaders' judgment fail terribly, we are not without recourse; albeit difficult, it is far from impossible to reverse an incorrectly decided case.

Posted by: J (VH) | May 18, 2004 1:31 AM

That last bloke, he's spot on :-) M (apologies if bloke is in fact a bird)

Posted by: martin | May 18, 2004 5:11 AM

nope, i'm a bloke ;).

Posted by: J | May 18, 2004 10:06 AM

You beat me to saying that. ;)

Posted by: A. Rickey | May 18, 2004 10:11 AM

Yes, yes, David, believe it or not, I've read my share of Blackstone, and The Forms of Action at Common Law, for that matter. I know the traditional function of the jury. As for 'kritarchy,' my understanding is that the word is used not only to describe government as under the rule of judges in ancient Israel, but for any system of rule by judges. But you can consider it rhetoric if you wish. Yes, a kritarchy would be an overstatement, but then it is a title phrase. (To be honest, I also wanted to see how it affected the google update for the word 'kritarchy' next time. It's a relatively uncontested word, and I'd like to see how my entry effects it.)

Posted by: A. Rickey | May 18, 2004 11:19 AM

Well, since juries can't be told that they can rule on the justice of applying a particular law to a particular case, and are reduced to merely deciding 'the facts under law', their primary function on a larger scale, that of preventing oppression by legislatures making unjust laws, and arbitrary prosecutorial discretion, it appears to me that we have a very serious problem. Of course if jurors happen to know about all of their rights and powers before they enter the courtroom, they can exercise them. But good luck getting seated on a jury if the judge or prosecutor catch a wiff from the defense or a juror that 'jury nullification' is in play. Now that I think about it, your hyperbolic use of 'kritarchy' isn't maybe so much of an exageration. We are effective ruled (in the criminal realm) by the DA's and judges, justice be damned and all power to the court. The jury was supposed to ensure that unjust laws could not be enforced against an unwilling populace, as elections and/or appointments of legislators, judges and prosecutors is always subject to corrupt manipulation (not that it always occurs, but the parties control nominations, now don't they?). Parts of rural Kentucky are about the only place that the traditional British/American common law jury still fully functions, and those are curiously the jurisdictions where prosecutions for pot growing are no longer even brought typically, as those folks have been growing hemp plants for over 200 years, and will be damned if someone trys to tell them they can't. In short, popular sovereignty in action, and the localized short-circuit method for unjust laws, most especially when the political leaders don't have the stomach to change them (Hello, War on Drugs...at least the part re: pot). Combined with the prevalence of plea bargaining, felony inflation and mandatory sentencing, I'm almost curious if there's a term for "rule by prosecutors". Good god, the federal judge not allowing the growers in CA to MENTION in court that what they did was legal and with the knowledge and consent of the State of CA and their county and city? In an area that the feds have dubious grounds at best to stick their noses in? Rule by judges indeed, I take it back completely now after finishing this, you were right with the K word, but not in the way you intended, IMHO! Oh, I and have always thought of kritarchy more in the context of the Celts and certain other tribal cultures, and had overlooked the fact that ancient Israel fit in that tradition too. Thanks!

Posted by: David Mercer | May 18, 2004 10:35 PM

David: According to the OED for kritarchy: The rule, or period of rule, of the Judges in ancient Israel. Only place I'd ever really heard the term applied in its technical sense. I was wondering where you were getting the whole 'shunning' business.

Posted by: A. Rickey | May 18, 2004 11:09 PM

Although I've read the Bible quite a few times, I hadn't thought of the Judges period as a kritarchy, as I came upon that term fairly recently, in other contexts, and my bible readin' was QUITE a while ago! In certain european kritarchic societies (Irish Celtic during certain periods), and at least a few african ones (such as Somalia before it was ruined by 'democracy':one man, one vote, once, type nonsense), there was no coercive penal code, and any disputants (or victims) would negotiate over a mutually agreeable judge's forum, or a panel with one pick each and a pick from the village leader, etc. If the defendant of an action wouldn't agree to a judge(s) and/or present themselves in any mutually recognized forum, they were considered persona non grata aka shunned and not done business with any more. Several such societies had concepts of judicial insurance or bond-like converage being how one bought their way into adulthood. Such past cultures (see certain Dutch Naturl Law philosophers for the best histories) are the root source of many or most anarcho-libertarian utopian fantasies. The rub of course is that EVERY single one of them in history has eventually fallen to an external hostile power of one sort or another. Hence external defense remains the sticky issue, in theory and practice, in most libertarian thinking. Back to the here and now and the realm of the possible, what DO you honestly think about the current state of the jury? Cheers, David

Posted by: David Mercer | May 19, 2004 6:46 PM

Welcome to the Kritarchy of Massachusetts

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