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the anti-democratic option

By Phil Lawler (bio - articles - email) | Mar 01, 2010

 "Gay rights by law, not vote" reads the headline on a Boston Globe editorial. Reading it for the first time, one might wonder how else laws are established in a democracy, if not by vote. But the subject of the editorial is same-sex marriage, so the usual rules of logic, rhetoric, and democratic theory do not apply.

The attorney general of Massachusetts, Martha Coakley (who has her own reasons for feeling unhappy with the results of reliance on a majority vote) is challenging the Defense of Marriage Act. By striking down that federal law, she reasons, a court could eliminate the conflict between the Massachusetts policy allowing same-sex marriage and the DOMA rule that other states are not obliged to recognize such unions.

Let's pause here for a quick review. The DOMA was passed in Congress by a majority vote. The Massachusetts law allowing same-sex marriage was established by court decree, without ever consulting the voters. You can see why Coakley and the Globe are happier with "law" (court-dictated law, in this case) than with votes.

Coakley wants a federal court to strike down the law that Congress passed. Better yet, she wants a single judge to decide the case. And that's not all; she wants the judge to make his ruling without a trial. The Globe editorial explains her reasoning: "The unfairness of the law is evident."

Oh, well then. If it's evident, why bother with a trial? Why bother with a court? Why bother with a democratic vote? The law is--or should be--what Coakley and the Globe agree it is. That's the essential argument, laid out with remarkably little camouflage in this editorial-- and for that matter in Coakley's lawsuit.

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  • Posted by: frjpharrington3912 - Mar. 03, 2010 12:13 PM ET USA

    The Constitution of the Commonwealth of Massachusetts was ratified only after it was approved by the vote of the citizens of the Commonwealth. The third paragraph of its Preamble infact begin with the words, "We, therefore, the people of Massachusetts acknowledging, with grateful hearts...In Part The First it states "In the government of this Commonwealth... the judicial shall never exercise the legislative... As Attorney General didn't Martha Coakley swear an oath to uphold the Constitution?

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