Friday, December 4, 2015
Monomoy Debates Patriot Act at EMK Institute
Friday, June 26, 2015
Like Marriage Equality? Thank John Adams (and Daniel Webster)
This is an article based on an example I have used with students to demonstrate the importance of constitutionalism. With the US Supreme Court having just issued its landmark decision on marriage equality, I thought it would be timely to update and repost.
On November 18, 2003, Chief Justice Margaret Marshall of the Supreme Judicial Court issued her famous ruling in Goodridge v. Department of Public Health legalizing same-sex marriage in Massachusetts. It fell like a large rock in a flat pond, sending waves in all directions, except that as time has gone on and the waves have spread, they have not dissipated but grown larger. Today, the US Supreme Court has applied the logic of the Goodridge decision to the nation. Marriage equality seems as inevitable as progress itself.
But this was not so in 2003. Back then, it was a radical idea in the United States. Only Vermont had gone so far as recognizing civil unions. A gradual spread of civil union recognition seemed possible, but marriage for same-sex couples wasn’t even part of the general discussion.
The Goodridge decision itself seemed unlikely to stand, as large majorities of citizens and legislators in Massachusetts opposed it. Had it not stood, I suspect that most Americans would still today agree that marriage should only be between a man and a woman. Marshall’s opinion was a heroic and tenuous leap toward greater justice for all.
Yet Margaret Marshall is not the only hero of the story. There is John Adams, who wrote the constitution on which Marshall based her decision. And there is Daniel Webster, who drafted the process by which that constitution could be amended.
John Adams: Hero
Among his many accomplishments, John Adams was the principal author of the Massachusetts Constitution, written in 1779 and adopted in 1780. It is the oldest operating constitution in the world and served as a model for other states and for the founding fathers at the Philadelphia Convention in 1787 (Adams was not at that Convention, serving as the United States’ minister to England at the time).
The reason to credit him for our progress on marriage equality is clear in the Goodridge decision itself, grounded in the principles of the Massachusetts Constitution. The protection of individual rights contained therein was the basis for finding that the law providing marriage licenses only to opposite sex couples could not be sustained.
It is worth noting that in contrast to the U.S. Constitution in which the Bill of Rights was an afterthought (forced due to the compromise during ratification first engineered by John Hancock), Adams began the Massachusetts Constitution with a Declaration of Rights. This contains thirty articles detailing the freedoms guaranteed to the people, explicated right after the preamble, before explaining the form of government. Rights came first for Adams. Two centuries on, the rights therein described gave the Massachusetts Supreme Judicial Court the legal ammunition needed to make the case for marriage equality.
Justice John Greaney, in his concurring opinion, particularly cited Article I of the Declaration of Rights, which states: “All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness.” Marrying your partner was found to be a protected way for all people to obtain happiness. Thank you, John Adams.
Daniel Webster: Hero
The reason to credit Daniel Webster is because of the peculiar process of amending the Massachusetts Constitution, which requires a protracted effort giving time for people to change their mind. This was critical in allowing Marshall’s decision to survive the backlash to such a momentous change.
Massachusetts was not the first state to rule in favor of marriage equality. That honor belongs to Hawaii, whose Supreme Court issued a decision similar to Goodridge in 1993. However, the legislature in Hawaii acted quickly, adding an amendment to the state constitution the same year that overturned the decision. In harmony with public opinion in the state, and in every state, same-sex marriage was deemed outside to realm of acceptability and could not be sustained. Given the straightforward amendment process in the Hawaii constitution, the decision was overturned quickly.
Even so, Congress was alarmed enough by what happened in the middle of the Pacific to pass the Defense of Marriage Act. DOMA made it clear that if a state were to be so adventurous as Hawaii was briefly, that the federal government would not recognize the marriages in any way and that no other state would be obligated to do so. Never mind that this would seem to violate the Full Faith and Credit clause, which requires states to honor legal acts of other states. This includes 3am Elvis-officiated Las Vegas matrimonials, so why not Provincetown gay marriages? The perceived threat of same-sex unions was great enough to override any such concern. DOMA passed the House 342-67 and the Senate 85-14 and President Clinton signed it. See a great speech by Sen Charles Robb (D-VA) against DOMA here.
A decade later, the reason why marriage equality held on in Massachusetts after being overturned in Hawaii was not because of progress in peoples’ attitudes or because Massachusettians were more supportive than Hawaiians. It was because of the amendment process in their constitution.
Actually, the constitution Adams wrote in 1779 was pretty vague about how it could be amended, only calling for a convention to write amendments after 15 years. In 1795, the attempt to call for a constitutional convention failed, so it remained unchanged.
Until 1820. That year, the legislature called for a constitutional convention to propose amendments. The convention met from November 15, 1820 until January 9, 1921. Attending the convention, representing the town of Quincy, was a certain 85 year old former U.S. President. He was elected president of the convention, a position he declined. He was then assigned a seat of honor to the right of the next chosen president, Isaac Parker. Adams participated actively in the early parts of the deliberations.
Also chosen to participate in the convention was a 38 year old Daniel Webster from Boston who had recently moved there from New Hampshire, having already served two terms in the U.S. House of Representatives. He went on to serve 28 more years in the national government as a Representative, Senator, and twice as Secretary of State, one of the most important American statesmen of the Nineteenth Century.
At the 1820 convention, Webster was chosen chair of one of the committees tasked with preparing proposals. On November 29, he presented several resolutions, including one to provide for future amendments.
Under this, amendments were to be proposed by the state legislature (known officially as the General Court) and then sent to the people for ratification. But it included an unusual provision that amendments had to be supported by two consecutive legislatures (with an election between) before being referred to the people for ratification.
On that day, he made the case for this design: “To provide that an amendment should not be proposed under the influence of a popular excitement,” amendment should “require the repeated assent of the Legislature...The question, in the mean time, would be in some measure tried by the people, who would express their opinions in the next election.” (Journal of debates and proceedings in the Convention of delegates, chosen to revise the constitution of Massachusetts, begun and holden at Boston, November 15, 1820, and continued by adjournment to January 9, 1821. Reported for the Boston Daily Advertiser)
The proposal was finally debated and adopted on December 26 (Christmas was not a holiday in Puritan Massachusetts). At the end of the convention, it was presented as the last of 14 proposed amendments, which were then sent to the people to vote on them in town meetings in April. Nine of the proposals were ratified, including Webster’s plan for future amendment, which became the Ninth Amendment to the Massachusetts Constitution.
This process was supplanted by the 48th Amendment in 1918 that revised the process and added the Initiative Amendment allowing citizens to propose an amendment directly by petition. But one important element of the 9th Amendment was retained - the requirement that any proposed amendment be considered by two consecutive legislatures. The cooling off period envisioned by Webster was retained. (Today, eleven states have a version of this repeated voting requirement.)
The Goodridge decision gave the legislature 180 days to pass a law that would establish a process that allowed same sex couples to marry. The problem was that the legislature opposed such as step. At the time, even most Democrats were against gay marriage. The most liberal position was taken by Vermont, which in 2000 (directed by their Supreme Court) adopted legislation creating civil unions, a process by which same sex couples could become a legally sanctioned couple that conferred most of the rights of married couples but had no implications beyond the state. Some in Massachusetts at the time wished to follow Vermont’s lead, but few supported going further.
Following the decision, the legislature petitioned the Supreme Judicial Court asking if a civil union law similar to Vermont’s would satisfy the Court’s requirements. In February, the Court responded that any law that made a distinction in the legal status between opposite-sex and same-sex couples would violate the Massachusetts Constitution due to this discrimination.
So on May 17, 2004, after the legislature failed to meet the deadline established by the SJC, cities and towns in Massachusetts began issuing marriage licenses to all couples regardless of gender composition.
The legislature, instead of passing a law enacting the Court’s ruling, adopted an amendment to overturn it. There was a “popular excitement” just as Webster envisioned.
Meeting in Constitutional Convention in February and March, the legislature considered several possible amendments to accomplish this. They were divided between those who wanted to provide for civil unions instead of marriage and those who wanted no recognition. After many attempts, they settled on one that would end gay marriage but allow for civil unions, passing 105-92. Most who voted against did so because they thought no legal recognition should be given, not because they supported the court’s decision. And had this amendment gone to the voters in November, 2004, gay marriage would have disappeared again as it had in Hawaii in 1993.
That fall, my students at Harwich High School conducted our annual survey of local voter attitudes, and we added a question - what do you think the legal status of same-sex couples should be? A year after the decision, only 38% supported gay marriage, while 34% supported civil unions but not marriage, and 28% opposed any recognition. These numbers suggest that given the opportunity that fall to overturn the Goodridge decision, we would have.
But the amendment could not go to the voters that fall. The most the legislature could do in 2004 was refer their proposed amendment to the “General Court next chosen” then wait for the next election.
While the process waited, public opinion began to evolve. A lot of the opposition to gay marriage was based on unfamiliarity. Because it didn’t exist, some people had a hard time imagining that it should. Many feared that it would undermine the institution of marriage generally. But once same sex couples were able to marry, both the novelty and the apprehension dissipated.
In 2005, the legislature met again to consider the amendment they had passed a year earlier. But this time, the amendment failed to get the majority it needed to refer the amendment to the ballot.
The story doesn’t quite end there because of the 48th Amendment’s initiative amendment process. A coalition of groups that opposed gay marriage, including the Catholic Church, began a petition to amend the constitution to overturn the decision. By late 2005, they met the requirement to get 70,000 signatures (3% of the last gubernatorial election). But the initiative amendment process then requires the amendment to be considered by two consecutive legislatures needing 25% support from each to go to the voters. This gives the legislature some ability to reign in the popular initiative process if an overwhelming majority of them oppose the measure and again applies the 9th amendment’s “cooling off period” requirement.
In 2006, the legislature met in Constitutional Convention again and the amendment got the needed 25% support to refer it to the “General Court next chosen”. Had the amendment gone to the ballot that year, it’s fate would have been uncertain. Our annual survey shows the shift in opinion over gay marriage, with opinion being evenly split - 49% supported gay marriage, and 51% supported either civil unions or no recognition.
But again the consecutive legislature requirement slowed the process. In 2007, the new legislature met once more in Constitutional Convention and this time the amendment failed to meet the 25% threshold. By then, a clear majority of the state had come to accept and support marriage equality. In our 2008 survey, support for marriage equality reached 56%.
Due to the particulars of the Massachusetts Constitution, Marshall was able to issue the historic Goodridge decisions, and the decision stood.
In the years since, the Massachusetts experience has done much to alter the perceptions and allay the fears of a great number of Americans. Now a clear majority supports marriage equality, and this set the stage for the US Supreme Court ruling.
The Goodridge decision was the tipping point for marriage equality. But if not for the quirks of the Massachusetts Constitution, gay marriage in Massachusetts would have lasted less than a year, just as it had in Hawaii, and we might be in a very different place today.
So if you are proud of the progress that our state and country have made on marriage equality, thank John Adams, and Daniel Webster.
On November 18, 2003, Chief Justice Margaret Marshall of the Supreme Judicial Court issued her famous ruling in Goodridge v. Department of Public Health legalizing same-sex marriage in Massachusetts. It fell like a large rock in a flat pond, sending waves in all directions, except that as time has gone on and the waves have spread, they have not dissipated but grown larger. Today, the US Supreme Court has applied the logic of the Goodridge decision to the nation. Marriage equality seems as inevitable as progress itself.
But this was not so in 2003. Back then, it was a radical idea in the United States. Only Vermont had gone so far as recognizing civil unions. A gradual spread of civil union recognition seemed possible, but marriage for same-sex couples wasn’t even part of the general discussion.
The Goodridge decision itself seemed unlikely to stand, as large majorities of citizens and legislators in Massachusetts opposed it. Had it not stood, I suspect that most Americans would still today agree that marriage should only be between a man and a woman. Marshall’s opinion was a heroic and tenuous leap toward greater justice for all.
Yet Margaret Marshall is not the only hero of the story. There is John Adams, who wrote the constitution on which Marshall based her decision. And there is Daniel Webster, who drafted the process by which that constitution could be amended.
Among his many accomplishments, John Adams was the principal author of the Massachusetts Constitution, written in 1779 and adopted in 1780. It is the oldest operating constitution in the world and served as a model for other states and for the founding fathers at the Philadelphia Convention in 1787 (Adams was not at that Convention, serving as the United States’ minister to England at the time).
The reason to credit him for our progress on marriage equality is clear in the Goodridge decision itself, grounded in the principles of the Massachusetts Constitution. The protection of individual rights contained therein was the basis for finding that the law providing marriage licenses only to opposite sex couples could not be sustained.
It is worth noting that in contrast to the U.S. Constitution in which the Bill of Rights was an afterthought (forced due to the compromise during ratification first engineered by John Hancock), Adams began the Massachusetts Constitution with a Declaration of Rights. This contains thirty articles detailing the freedoms guaranteed to the people, explicated right after the preamble, before explaining the form of government. Rights came first for Adams. Two centuries on, the rights therein described gave the Massachusetts Supreme Judicial Court the legal ammunition needed to make the case for marriage equality.
Justice John Greaney, in his concurring opinion, particularly cited Article I of the Declaration of Rights, which states: “All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness.” Marrying your partner was found to be a protected way for all people to obtain happiness. Thank you, John Adams.
The reason to credit Daniel Webster is because of the peculiar process of amending the Massachusetts Constitution, which requires a protracted effort giving time for people to change their mind. This was critical in allowing Marshall’s decision to survive the backlash to such a momentous change.
Massachusetts was not the first state to rule in favor of marriage equality. That honor belongs to Hawaii, whose Supreme Court issued a decision similar to Goodridge in 1993. However, the legislature in Hawaii acted quickly, adding an amendment to the state constitution the same year that overturned the decision. In harmony with public opinion in the state, and in every state, same-sex marriage was deemed outside to realm of acceptability and could not be sustained. Given the straightforward amendment process in the Hawaii constitution, the decision was overturned quickly.
Even so, Congress was alarmed enough by what happened in the middle of the Pacific to pass the Defense of Marriage Act. DOMA made it clear that if a state were to be so adventurous as Hawaii was briefly, that the federal government would not recognize the marriages in any way and that no other state would be obligated to do so. Never mind that this would seem to violate the Full Faith and Credit clause, which requires states to honor legal acts of other states. This includes 3am Elvis-officiated Las Vegas matrimonials, so why not Provincetown gay marriages? The perceived threat of same-sex unions was great enough to override any such concern. DOMA passed the House 342-67 and the Senate 85-14 and President Clinton signed it. See a great speech by Sen Charles Robb (D-VA) against DOMA here.
A decade later, the reason why marriage equality held on in Massachusetts after being overturned in Hawaii was not because of progress in peoples’ attitudes or because Massachusettians were more supportive than Hawaiians. It was because of the amendment process in their constitution.
Actually, the constitution Adams wrote in 1779 was pretty vague about how it could be amended, only calling for a convention to write amendments after 15 years. In 1795, the attempt to call for a constitutional convention failed, so it remained unchanged.
Until 1820. That year, the legislature called for a constitutional convention to propose amendments. The convention met from November 15, 1820 until January 9, 1921. Attending the convention, representing the town of Quincy, was a certain 85 year old former U.S. President. He was elected president of the convention, a position he declined. He was then assigned a seat of honor to the right of the next chosen president, Isaac Parker. Adams participated actively in the early parts of the deliberations.
Also chosen to participate in the convention was a 38 year old Daniel Webster from Boston who had recently moved there from New Hampshire, having already served two terms in the U.S. House of Representatives. He went on to serve 28 more years in the national government as a Representative, Senator, and twice as Secretary of State, one of the most important American statesmen of the Nineteenth Century.
At the 1820 convention, Webster was chosen chair of one of the committees tasked with preparing proposals. On November 29, he presented several resolutions, including one to provide for future amendments.
Under this, amendments were to be proposed by the state legislature (known officially as the General Court) and then sent to the people for ratification. But it included an unusual provision that amendments had to be supported by two consecutive legislatures (with an election between) before being referred to the people for ratification.
On that day, he made the case for this design: “To provide that an amendment should not be proposed under the influence of a popular excitement,” amendment should “require the repeated assent of the Legislature...The question, in the mean time, would be in some measure tried by the people, who would express their opinions in the next election.” (Journal of debates and proceedings in the Convention of delegates, chosen to revise the constitution of Massachusetts, begun and holden at Boston, November 15, 1820, and continued by adjournment to January 9, 1821. Reported for the Boston Daily Advertiser)
The proposal was finally debated and adopted on December 26 (Christmas was not a holiday in Puritan Massachusetts). At the end of the convention, it was presented as the last of 14 proposed amendments, which were then sent to the people to vote on them in town meetings in April. Nine of the proposals were ratified, including Webster’s plan for future amendment, which became the Ninth Amendment to the Massachusetts Constitution.
This process was supplanted by the 48th Amendment in 1918 that revised the process and added the Initiative Amendment allowing citizens to propose an amendment directly by petition. But one important element of the 9th Amendment was retained - the requirement that any proposed amendment be considered by two consecutive legislatures. The cooling off period envisioned by Webster was retained. (Today, eleven states have a version of this repeated voting requirement.)
The Goodridge decision gave the legislature 180 days to pass a law that would establish a process that allowed same sex couples to marry. The problem was that the legislature opposed such as step. At the time, even most Democrats were against gay marriage. The most liberal position was taken by Vermont, which in 2000 (directed by their Supreme Court) adopted legislation creating civil unions, a process by which same sex couples could become a legally sanctioned couple that conferred most of the rights of married couples but had no implications beyond the state. Some in Massachusetts at the time wished to follow Vermont’s lead, but few supported going further.
Following the decision, the legislature petitioned the Supreme Judicial Court asking if a civil union law similar to Vermont’s would satisfy the Court’s requirements. In February, the Court responded that any law that made a distinction in the legal status between opposite-sex and same-sex couples would violate the Massachusetts Constitution due to this discrimination.
So on May 17, 2004, after the legislature failed to meet the deadline established by the SJC, cities and towns in Massachusetts began issuing marriage licenses to all couples regardless of gender composition.
The legislature, instead of passing a law enacting the Court’s ruling, adopted an amendment to overturn it. There was a “popular excitement” just as Webster envisioned.
Meeting in Constitutional Convention in February and March, the legislature considered several possible amendments to accomplish this. They were divided between those who wanted to provide for civil unions instead of marriage and those who wanted no recognition. After many attempts, they settled on one that would end gay marriage but allow for civil unions, passing 105-92. Most who voted against did so because they thought no legal recognition should be given, not because they supported the court’s decision. And had this amendment gone to the voters in November, 2004, gay marriage would have disappeared again as it had in Hawaii in 1993.
That fall, my students at Harwich High School conducted our annual survey of local voter attitudes, and we added a question - what do you think the legal status of same-sex couples should be? A year after the decision, only 38% supported gay marriage, while 34% supported civil unions but not marriage, and 28% opposed any recognition. These numbers suggest that given the opportunity that fall to overturn the Goodridge decision, we would have.
But the amendment could not go to the voters that fall. The most the legislature could do in 2004 was refer their proposed amendment to the “General Court next chosen” then wait for the next election.
While the process waited, public opinion began to evolve. A lot of the opposition to gay marriage was based on unfamiliarity. Because it didn’t exist, some people had a hard time imagining that it should. Many feared that it would undermine the institution of marriage generally. But once same sex couples were able to marry, both the novelty and the apprehension dissipated.
In 2005, the legislature met again to consider the amendment they had passed a year earlier. But this time, the amendment failed to get the majority it needed to refer the amendment to the ballot.
The story doesn’t quite end there because of the 48th Amendment’s initiative amendment process. A coalition of groups that opposed gay marriage, including the Catholic Church, began a petition to amend the constitution to overturn the decision. By late 2005, they met the requirement to get 70,000 signatures (3% of the last gubernatorial election). But the initiative amendment process then requires the amendment to be considered by two consecutive legislatures needing 25% support from each to go to the voters. This gives the legislature some ability to reign in the popular initiative process if an overwhelming majority of them oppose the measure and again applies the 9th amendment’s “cooling off period” requirement.
In 2006, the legislature met in Constitutional Convention again and the amendment got the needed 25% support to refer it to the “General Court next chosen”. Had the amendment gone to the ballot that year, it’s fate would have been uncertain. Our annual survey shows the shift in opinion over gay marriage, with opinion being evenly split - 49% supported gay marriage, and 51% supported either civil unions or no recognition.
But again the consecutive legislature requirement slowed the process. In 2007, the new legislature met once more in Constitutional Convention and this time the amendment failed to meet the 25% threshold. By then, a clear majority of the state had come to accept and support marriage equality. In our 2008 survey, support for marriage equality reached 56%.
Due to the particulars of the Massachusetts Constitution, Marshall was able to issue the historic Goodridge decisions, and the decision stood.
In the years since, the Massachusetts experience has done much to alter the perceptions and allay the fears of a great number of Americans. Now a clear majority supports marriage equality, and this set the stage for the US Supreme Court ruling.
The Goodridge decision was the tipping point for marriage equality. But if not for the quirks of the Massachusetts Constitution, gay marriage in Massachusetts would have lasted less than a year, just as it had in Hawaii, and we might be in a very different place today.
So if you are proud of the progress that our state and country have made on marriage equality, thank John Adams, and Daniel Webster.
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