Doing It Right
Last week, the state of Vermont made history by legalizing same-sex marriage. Although it is one of four states in the nation that now recognize such marriages, Vermont is the first to have reached this result by means of a truly democratic process. Unlike the other states that allow same-sex marraige (Massachusetts, Connecticut and Iowa), where it was allowed through state supreme court rulings, Vermont has established same-sex marriage through the legislative process. Regardless of one's views on the issue of same-sex marriage, the state of Vermont should be applauded for changing its law in the appropriate way.
The legislative process that occurred in Vermont last week was democracy at its best. The state legislature first passed legislation for the legalization of same-sex marriage. The system of checks and balances was triggered when Vermont Gov. Jim Douglass vetoed the legislation. His veto was then overridden by the Vermont House and the Senate, both obtaining the required two-thirds majority for the law to be passed.
This process is entirely different from the way other states have changed their marriage laws. In Massachusetts, Connecticut and Iowa, the changes were not made by the legislative branch, but were imposed from the bench. For judges to act beyond the scope of their appropriate roles is not only undemocratic, but may also be harmful for the causes they are trying to support.
Abortion, for example, might not have become such a polarizing issue had the decision been left to state legislatures, instead of being made by the U.S. Supreme Court. Some of the dissenting opinions in Roe v. Wade suggest that the Supreme Court overstepped its boundaries in implementing the highly specific abortion trimester framework. Justice Byron White believed that the courts should not be in the business of creating statutes, stating in his dissent, "[The issue of abortion] for the most part, should be left with the people and to the political processes the people have devised to govern their affairs."
Justice Ruth Bater Ginsburg, who firmly believes that abortion is a woman's choice, disagrees with the Roe v. Wade decision, claiming that it needlessly exacerbated the abortion controversy. Ginsburg has suggested that the court went too far, and that the decision created the launching point for the pro-life movement.
A similar backlash occurred in California, when the state's supreme court ruled the pre-existing statutory ban on same-sex marriage was unconstitutional. The decision sparked Proposition 8, the ballot measure that amended the state constitution to restrict the definition of marriage to opposite-sex couples, eliminating same-sex couples' rights to marry, and essentially overriding the state supreme court's decision.
Perhaps people are more accepting of laws passed by legislative bodies than laws implemented by the judiciary; the legislative branch directly represents the voice of the electorate. Because state representatives are elected by the people and must periodically stand up for reelection, they are an accurate representation of what citizens want. Judges, on the other hand, are mostly (depending on the state) appointed by elected officials, and generally serve much longer terms than representatives. In some states, judges are often confirmed to tenured positions and remain on the bench until their retirement. For this reason, decisions made by the legislatures tend to be more political, as representatives yield more to the people's desires than judges, who have less of an incentive to do so.
Another reason that people may be more accepting of the legislative process is that it is more straightforward and easier to understand. As society evolves and the desires of the electorate change, so too do the laws. Judges, on the other hand, point to the Constitution, asserting rights that have supposedly always existed. Judges' reasoning for their interpretations are not only sometimes difficult to understand, but are also often subjective, as a number of different interpretations may be extrapolated from the same content. Regardless of one's opinions, if a law is passed by democratic means, through the legislative body, people can at least feel that it's been done fairly, and that it was accomplished by a process that can be more easily understood.
Vermont has changed its same-sex marriage laws by the proper means, and I hope that the state's actions will set a precedent for the rest of the nation. It is quite clear that our country is becoming increasingly liberal, and it is likely that additional states will look to legalize same-sex marriage in the near future. I hope that, if more states decide to change their laws, they will follow Vermont's lead and do so in a democratic way.