Friday, June 13, 2008
Robert Miller responds to Michael Perry's critique of his testimony on SSM as follows:
I thank Michael Perry for his comments on my testimony before the Pennsylvania Senate re S.B. 1250, a proposed amendment to the state constitution that would limit marriages to unions of one man and one woman.
First, I agree with Professor Perry that, given my arguments in the testimony, the best solution would be an amendment that strips the courts of the power to decide the same-sex marriage issue and leaves the issue to the normal legislative process. I would happily vote for such an amendment. In fact, however, the political realities in Pennsylvania are such that if the legislature approves any amendment to the Pennsylvania constitution, it’s very likely to be in the form of S.B. 1250. Hence, for practical purposes, it’s S.B. 1250 or nothing. Since, as I argued in the testimony, the issue is very likely to be constitutionalized one way or another by the courts, if there is to be a genuine public debate on this issue and a democratic resolution, the only practical option is S.B. 1250.
Second, when I said that a decision by the Pennsylvania Supreme Court that the state constitution does not require same-sex marriages or civil unions would “for all practical purposes” have “roughly” the same effect as the passage of the proposed amendment, every word there counts. I was not speaking of *legal* purposes. Professor Perry is obviously right that S.B. 1250, but not a decision of the supreme court, would disable the legislature from creating same-sex marriages or civil unions in future. I said as much myself about S.B. 1250. But, as I expressly said, in the language Professor Perry quotes, I was speaking not about legal effects but “practical purposes.” I meant, that is, that given such a decision from the Pennsylvania supreme court and given too the political realities in Pennsylvania, there would be little chance in the foreseeable future of the state changing its laws from the status quo, i.e., no same-sex marriages and no civil unions. That statement, I still think, is correct.