In an article that purports to analyze the political situation in New Hampshire in the wake of the state legislature's approval of a bill that creates marriage equality for all the citizens of that state (and the governor's signature on that bill), National Review Online's Mark Hemingway makes this curious statement:
Of the recent states that have legalized same-sex marriage — Iowa, Maine, and New Hampshire — none has done so through democratic means...Granted, Iowans now have marriage equality due to a decision by the least democratic branch, the state supreme court. Even so, Iowa supreme court justices are held accountable through retention elections held one year after their appointments, and they serve limited terms of eight years, rather than lifetime terms. So that judicial decision-making body is not entirely undemocratic.
In the cases of Maine and New Hampshire, however, the decision to open up marriage to consenting adults regardless of sexual orientation was made by what one might call the most democratic branches: the legislature and the governor.
Hemingway fails to mention the other states that have marriage equality. A same-sex marriage law was passed by the legislature in Vermont years after that state first created "civil unions" through the legislative process. In Massachusetts the state legislature deliberated over and ultimately rejected an effort to overturn the state supreme court's ruling that a prohibition on same-sex marriage violated the commonwealth's constitution. In Connecticut, the state legislature approved civil unions but the state supreme court ruled that this was discriminatory and that marriage must be available to all citizens regardless of gender.
I might add that both chambers of the California legislature approved a bill to provide marriage equality, but Governor Arnold Schwarzenegger vetoed it. California's domestic partnership law gives all the responsibilities and privileges of marriage to same-sex couples, except for the name "marriage."
Hemingway has an odd definition about what is "democratic." If lawmaking by elected legislative bodies is not democratic, then what is?
It may be that Hemingway thinks that this sort of legislative action is made through "republican" means and that "democratic" lawmaking is limited to voter-approved (if not voter-initiated) referenda.
If so, Hemingway's view of legislative legitimacy is sorely at odds with the views of the Founders. It may be time for him to read The Federalist Papers. His understanding of "democratic" lawmaking is also at odds with common parlance.
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