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Mass Marrier "sentences" me to read the dissent for the SJC decision. At 43 pages, I’ve been skimming the decision, rather than reading, but so far I don’t find the dissent more compelling than the decision. I’ll defer to Jason on the legal reasoning involved, but suffice it to say that in legal cases, there are often plausible reasons on both sides; the role of the judiciary is to weigh those and find which argument is the best. Reading MassMarrier you’d think Cote-Whitacre is as obvious an misreading of legal principles that Dred Scott was, and it’s not.

But the legal issues are secondary to my original point about the 1913 law and MassMarrier’s rebuttal. Yes, the law is mean-spirited, both in its original guise to stop interracial marriage and in the sudden revival after Goodrich. But I think it’s been an unexpectedly good thing in keeping the gay marriage debate here from being nationalized as part of the great Culture War. For this, MassMerrier calls me an incrementalist and says,

Chris’s arguments include accommodation of the comfort level of Massachusetts residents "Having gay couples from out of state come in - and framing the issue as a national struggle rather than as a simple question of whether the Commonwealth is treating its citizens equally - increases that trapped feeling among voters." That one falls in the too-damned-bad class. On other big civil-rights issues, many were uncomfortable too. The burden should be on them to adapt, not on the whole society to continue discrimination until the mainstream is good and ready to wave the aspergillum over the decision. The latter would mean making law twice — a little here, and then, let us know when you are ready for the whole thing. Rights often come in chunks.

In the great scheme of things, I’m not an incrementalist. DesignerBlog reminds us that a healthy slice of gay opinion nationally has been opposed to gay marriage in Massachusetts because it has meant possible backlash in other states and fodder for the GOP in Red America. I’m not one of those people, and if you read what I’ve written on gay rights here, you’ll see me as forthright in support of gay marriage here in the Commonwealth from the start.

Personally, I live as an out gay man and take a "too damned bad" attitude if people have a problem with me being gay or acting too gay. Despite my words for taking into account other political perspectives, I draw the line at taking seriously people who are homophobic or question my humanity because I’m gay. But in the political sphere, voters can say "too damned bad," too. They may in fact say it when the constitutional amendment referendum comes up. I need something from the state - and ultimately the citizenry: recognition of rights that I think are dutifully mine.

That cuts to the paradox of human rights. On one hand, they have such force in our minds and hearts because they’re universal in scope, with the notion that there’s something about the human condition that requires equality and liberty. On the other hand, rights are really only rights to the extent that governments recognize them. It’s no accident that Enlightenment thinking came to be at the same time the nation-state was developing. (By the way, this isn’t merely some accomodationist theory, but is one of the valuable insists that Marxism provides.)

Because the law is based partly on claims of universal right, the judiciary is often instrumental in forging governmental recognition of civil rights even when electoral support or legislation is well behind the curve. But they’re most effective when their decisions end up bringing about a transmoration of public legitimation. That’s why MassMarrier’s jibe that "many were uncomfortable [then] too" is disengenuous. Obviously, the Second Reconstruction, the federal government enforced the law and civil rights over the bigotry of Southern resistors, who were at best uncomfortable with equality under the law, at worst cretinous in their cruelty and hostility to African Americans. But at each turn, the Feds had popular support in the nation as a whole, even among those who did not fully subscribe to the full legal equality of African Americans. Brown v. Board was instrumental in shifting the terrain of consciousness about universal rights should inhere to American citizens, but the government’s enforcement of rights had to draw upon popular will. Much of the civil disobedience of the Civil Rights movement was in fact savvy exploitation of the logic of mass media in order to gain popular support in the North.

Goodrich has shifted the consciousness around gay marriage, here and throughout the country. But I think the Court’s done what it can do. If we were in the political wilderness with an electorate and government hostilely unwilling to broach the subject of equality - and having come of age under the shadow of Bowers v. Hardwick, I remember those days well - I’d be all for a "too damned bad" approach. But with a solid 30-35% of the Massachusetts electorate with us and another 20-25% of soft support, what would be the advantage? I do think public legitimation of gay civil rights is well within our reach. MassMarrier calls me naive to think the out-of-state dynamic is going to make any difference. I couldn’t disagree more. There’s a large chunk of the state’s electorate who can and will get behind affirming gay rights in the ballot box because bristle at seeing the issue caught up in larger national culture wars. Let Bay State exceptionalism work for us and leave the battle in other states to those in other states. We will do best for the rest of the nation by being a quiet example rather than a marrier of last resort. Keeping gay marriage as a right, governmental as well as universal, should be our top goal.