Wednesday, April 27, 2005

Marriage Protection and Constitutional Protection

Posted By on Wed, Apr 27, 2005 at 10:32 AM

In the Scene out today, Roger Abramson critiques the ACLU of Tennessee lawsuit mounting a procedural challenge to the attempt to amend the state constitution to ban same-sex marriage. As one of the individual plaintiffs in that lawsuit and an ACLU-Tennessee board member, I will refrain from commenting on specific legal strategy, leaving that to the lawyers. But I will respond to one of Roger's main points. (read on...) Roger writes:

We have the ironic spectacle of the ACLU casting its lots with a very strict interpretation of a constitutional provision while the largely conservative supporters of the "Marriage Protection Act" prefer a much more expansive reading—given that the text of the proposal was available to the public through electronic means, i.e., the Internet, in plenty of time.

The only irony here is on the part of conservatives who think that "originalism" (the strict interpretation of clear constitutional language) is a good thing only when it suits their purposes. Those clamoring to write a denial of equal rights into the constitution are the same folks who tremble at the thought of judges who might interpret a constitution as saying something slightly at variance with the actual words on paper in the document. Yet they are more than happy to take it upon themselves to decide that the unambiguous language of our state constitution, mandating six months notice before a statewide election for a constitutional amendment, is an unnecessary contrivance.

There is no irony on the ACLU side. The organization's commitment is to the rule of law and the integrity of a constitutional process that is designed to insure that amendments are given adequate scrutiny by the public, and in this case we are talking about an amendment expressly designed to curtail the rights of citizens.

Roger sees the Tennessee constitution's six-month publication requirement as "quaint" and apparently thinks the four-plus months notice that occurred in this circumstance is no problem. But what level of non-compliance with the constitution's plain language will he allow? What if the legislature passes an amendment three months before an election? Two months? Two weeks? Two hours? Who gets to decide how much notice is enough? If he and his fellow travelers believe that Tennessee's constitutional amendment process is an anachronism, perhaps they should try to amend the constitution to change the amendment procedure, rather than deciding for themselves how the clear language of the constitution should be read.

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