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February 4, 2004
Massachussets Supreme Court: Gay-Marriage Ban Unconstitutional

The Massachussets Supreme Court has ruled that civil unions are not adequate substitutes for marriage and has ordered the Commonwealth to recognize marriage for same-sex couples:

The Massachusetts high court ruled Wednesday that only full, equal marriage rights for gay couples -- rather than civil unions -- would be constitutional, erasing any doubts that the nation's first same-sex marriages could take place in the state beginning in mid-May. The court issued the opinion in response to a request from the state Senate about whether Vermont-style civil unions, which convey the state benefits of marriage -- but not the title -- would meet constitutional muster. ...

The much-anticipated opinion sets the stage for next Wednesday's constitutional convention, where the Legislature will consider an amendment that would legally define marriage as a union between one man and one woman. Without the opinion, Senate President Robert Travaglini had said the vote would be delayed. The soonest a constitutional amendment could end up on the ballot would be 2006, meaning that until then, the high court's decision will be Massachusetts law no matter what is decided at the constitutional convention.

Bear in mind that the Massachussets Supreme Court ruling pertains to its state constitution, not the US Constitution, and that the ruling has no immediate or direct impact on other states. Congress has already passed legislation exempting marriage from the requirement of other states to recognize the laws of other states, so a same-sex couple who gets married in Massachussets won't automatically have that marriage recognized anywhere else. Legislators in Massachussets intend on amending the state constitution to reverse the decision, and this may cause a huge headache. A constitutional ban on gay marriage could not be applied ex post facto, meaning that anyone who gets married under the Court's ruling for the next two years would remain married regardless.

While I am more libertarian than my friends and colleagues and don't have an issue with gay marriage, I have a huge issue with it being implemented on a constitutional basis. Unless the Massachussets constitution actually says that the state shall not discriminate on the basis of sexual orientation -- it might, I don't know -- then this ruling goes from interpretation to legislation, and star-chamber legislation is the worst form of governing that Americans experience. Granting rights through judicial activism is the legal equivalent of a sledgehammer -- it hits the target and a lot of surrounding territory and it proves almost impossible to undo.

Take, for instance, the recent SCOTUS ruling declaring sodomy laws unconstitutional. Most people certainly agreed that these laws were foolish and unenforceable, but by declaring that two consenting adults had a constitutional right to do anything they wanted not only opens the door for sodomy, but also adult incest and any number of activities destructive to the social fabric of society. Had the matter been pursued through legislation, the offending laws could have been removed without granting previously unheard-of "rights" for anything else that occurs between consenting adults. Strictly speaking, you can make the same argument for granting constitutional protection for prostitution; it is a business transaction that, when made without the threat of arrest, remains between consenting adults. Previous to that ruling, such an argument could be made only in support of legislative action, but now it could very reasonably support a federal appeal of prostitution or pandering charges. I suspect it will be soon.

What Massachussets is saying is that rights are without boundaries and exempt from all restriction and definition, but that simply isn't so. The right to free speech is bound by restrictions on libel and slander and inciting riots. The right to peaceably assemble is similarly limited. The right to vote depends on citizenship, legal status, age, and residency. To say that a marriage is a right which is not bounded by restrictions is to open the door to all sorts of "redefinitions" of marriage between consenting adults, including polygamy and polyamory.

As I said earlier, I'm not unhappy with the immediate result of legalizing gay marriage, but I am upset that another court has usurped the legislative process yet again to promulgate law by fiat. Representative democracies work by allowing the people to create and impose the laws under which they are governed so that even if you personally disagree with the result, you (a) had an opportunity to be heard, either directly or through your representative, (b) limit the scope of the policy to its intended result, and (c) retain the ability to revisit the issue at a later date if the policy turns out to be misguided. Court decrees granting broad "rights" eliminate all three of these natural safeguards, distancing the process of legislation from the people it affects and increasing the sense of powerlessness of the electorate. This sense of powerlessness results in sharply polarized politics, such as we see now on abortion, and it places too much political meaning in the judicial process, resulting in the acrimony and stalemate on judicial confirmations at all levels.

Massachussets resident may indeed desire to recognize gay marriages. Unfortunately, the only choice left to them now is to allow their court to set an extreme precedent or to block any redefinition entirely by constitutional amendment. Total victory or abject loss have become the only two options in American politics anymore, thanks to judicial activism, and until we insist on curtailing this activism we will continue the disenfranchisement of the American electorate in favor of government by robed diktat.

UPDATE: The decision, via Instapundit.

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Posted by Ed Morrissey at February 4, 2004 12:46 PM

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The President's response to the Massachusetts' Court Ruling: Today's ruling of the Massachusetts Supreme Judicial Court is deeply troubling. Marriage is a sacred institution between a man and a woman. If activist judges insist on re-defining marriage b... [Read More]

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