THE PLANK MAY 8, 2009
I am late to this, but Maine Governor John Baldacci's explanation of why he changed his mind on gay marriage was fascinating--and shed some light on a question that has been hotly debated in liberal circles over the past few years: When it comes to gay marriage, does judicial activism help or hurt? From The New York Times:
Gov. John Baldacci of Maine signed a same-sex marriage bill on Wednesday minutes after the Legislature sent it to his desk, saying he had reversed his position because gay couples were entitled to the state Constitution's equal rights protections.
"It's not the way I was raised and it's not the way that I am," Mr. Baldacci, a Democrat, said in a telephone interview. "But at the same time I have a responsibility to uphold the Constitution. That's my job, and you can't allow discrimination to stand when it's raised to your level."
Baldacci is being very specific: He shifted his view because he decided that the status quo wasn't constitutional. This struck me as a noteworthy, and unusually clear, piece of evidence in the debate over the efficacy of judicial activism. Those of us who favor an active role for courts hardly see them as the only, or the primary, way of pushing liberal goals. We simply argue that progress in a liberal democracy is a complicated enterprise involving multiple players and multiple branches of government--and that, when it is clear history is headed in a certain direction, courts can often play a role in nudging forward other branches, not to mention public opinion. This is arguably what happened during the civil rights movement. Is the process working again? Ten years ago, I doubt any governor, especially one who was skeptical of gay marriage, would have been inclined to read his state's constitution as containing a right to gay marriage. What Baldacci's comment suggests is that, as judges across the country reinterpret equal protection clauses in light of our culture's changing understanding of homosexuality, they are not merely persuading themselves or their peers in other courts; they are also persuading those outside the judicial system.
Of course, it's just one governor, and it's just one comment. Still, it's a heartening development. So: Good for Governor Baldacci. And good for the judges who laid the intellectual groundwork for his decision.