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Massachusetts marriage ruling is judicial activism in action

By W. James Antle III
web posted November 24, 2003

Whenever strict constructionists decry judicial activism on the part of the courts, partisans of the imperial judiciary and its typically liberal agenda are quick to dismiss such concerns with a question: "Judicial activism? What judicial activism?"

Julie (L) and Hillary Goodridge hold hands at press conference in Boston on November 18 after the Massachusetts Supreme Judicial Court ruled that the Massachusetts constitution must give same sex couples the rights of marriage
Julie (L) and Hillary Goodridge hold hands at press conference in Boston on November 18 after the Massachusetts Supreme Judicial Court ruled that the Massachusetts constitution must give same sex couples the rights of marriage

Behold the November 18 Goodridge vs. Massachusetts Department of Public Health decision by the Massachusetts Supreme Judicial Court in favor of gay marriage. Even the media coverage of this ruling concedes that its decision on this contentious social issue was highly controversial. But it was also as stark an example of judicial activism as can be found.

Our political system as designed by the Founding Fathers divides power between executive, legislative and judicial branches. It is the role of the legislature to make laws, the executive to provide for their implementation and enforcement and the judiciary to adjudicate disputes arising from the law, including the compatibility of said laws with our the highest law of our land, constitutional law. The powers vested in the judiciary may require courts to issue unpopular decisions or even to rule that laws commanding majority support are unconstitutional. But this does not empower judges to summarily overturn laws they disagree with on policy grounds and replace them with something closer to their own views; to do so would be to overstep the legitimate powers of the judiciary and usurp those properly belonging to the legislature.

Yet this is precisely what the Massachusetts Supreme Judicial Court did in Goodridge. Rather than act according to constitutional principles and uphold the written law, a bare majority of judges made their ruling on the basis of their own personal opinions, substituting their policy preferences for the rule of law. The text of the decision makes clear that the majority weighed the arguments for and against gay marriage and found the former more persuasive than the latter. You may evaluate those arguments for yourself and agree with that judgment. But a court of law is not the same thing as a panel that determines the winner of a debate tournament. Courts are not tasked with deciding the merits of competing political arguments in order to resolve thorny issues. Instead, they are charged with interpreting and upholding laws they did not themselves make.
For starters, Goodridge takes the position that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." But nobody imagined that the commonwealth's constitution, which actually predates the U.S. Constitution, required same-sex marriage until the last few years. The idea never occurred to any previous supreme judicial court. It is contrary to precedent and common law. Not so long ago, a lower Massachusetts court had simply thrown this case out.

Chief Justice Margaret Marshall's majority opinion flatly states, "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason." Here she is not arguing from the law, but arguing with opponents of gay marriage. You may agree with her that the merits of gay marriage exceed those of the arguments being made against it, but even if those arguments are mistaken some of them surely at least have a rational basis. As commentator and World magazine editor Marvin Olasky has written, this assertion boils down to, "Gay marriage is good and you're nuts if you don't think so." That argument might be many things, but it isn't law.

The phrase "marriage ban" is itself prejudicial. It presumes that what is being discussed here is a set of unions equivalent to traditional marriage that the state has proactively banned rather than whether the historic definition of marriage as a union between one man and one woman will be altered. This is a presumption that is not required by the Massachusetts Constitution and one that opponents of same-sex marriage proposals reject. Yet rather than neutrally applying the law, the court is merely taking sides in the debate.

The court rejected the idea that marriage and procreation have anything to do with each other. Instead, it came up with the following reason for its existence: "Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, insures that children and adults are cared for and supported whenever possible from private rather than public funds, and tracks important epidemiological and demographic data." This sounds like a bureaucrat's formulation if one has ever been heard. While marriage does in fact do some of these things, this definition comes from nowhere other than the justices' own creative juices and is certainly a subjective proposition with which people could rationally disagree.

The court also dismissed the vast body of evidence that children fare best with a father and a mother to hold that the current definition of marriage keeps children of same-sex couples from enjoying a stable family structure. "It cannot be rational under our laws," Marshall wrote in her majority opinion, "to penalize children by depriving them of State benefits" because of their parents' sexual orientation." This is certainly a rational argument, but it is not the only argument that can be made nor is it the only interpretation of what preserving the traditional definition of marriage entails.

Proponents of traditional marriage might argue that it in fact offers what empirically is the most successful arrangement for raising children and policies that remove maximum social and legal encouragement of this arrangement will do more damage to children's interests in the long term. My purpose here is not to make the case against gay marriage. Many Americans share the viewpoints held by Chief Justice Marshall and her colleagues and would agree with the conclusions reached in the Goodridge decision. But we don't appoint judges to make policy decisions for us and Goodridge was little more than an attempt to achieve a specific policy result on gay marriage, which the majority held to be desirable, and find some constitutional justification (usually in the form of taking phrases like "equal rights" and turning them into ideological abstractions without any historical context) later.

The Massachusetts Supreme Judicial Court usurped social policy-making authority that properly belonged to the state legislature. Whether state legislators will do anything about it is unclear. Certainly some of them are outraged. They are joined by Massachusetts Republican Gov. Mitt Romney and Democratic Attorney General Thomas Reilly, who have both criticized the decision. "Decisions like this should be made by the legislature, not a court. And certainly not by a four to three decision of the court," Reilly contended. "You know you need to have a full discussion. You need to have an open debate and those debates take place in the legislature."

Justice Martha Sosman's dissenting opinion, as quoted in a synopsis on the Massachusetts SJC's website, also points out why this is a more appropriate question for the legislature: "the issue is not whether the Legislature's rationale behind [the statutory scheme being challenged] is persuasive to [the court]," but whether it is "rational" for the legislature to "reserve judgment" on whether changing the definition of marriage "can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our society." She concluded that the court was wrong to rule that the commonwealth's position in favor of traditional marriage failed the rationality test: "[a]bsent consensus on the issue (which obviously does not exist), or unanimity amongst scientists studying the issue (which also does not exist), or a more prolonged period of observation of this new family structure (which has not yet been possible), it is rational for the legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that redefinition will not have unintended and undesirable social consequences."

A fair legislative fight rather than activist judges making law from the bench might have spared us more than four decades of church-state wrangling which most recently manifested itself in Alabama's Ten Commandments dispute or the rancorous 30-year national abortion debate that followed Roe vs. Wade. But this is not good enough for judges who think they know best or their ideological enablers who want to impose agendas on the country that cannot prevail through democratic means.

Judicial activism is real and it has produced many jurists who see themselves less as judges than philosopher-kings ready to rule and dispense their wisdom to the great unwashed masses. Unfortunately, with such activism becoming the norm few people are willing to call these legislator-judges what they truly are. One exception is California State Supreme Court Justice Janice Rogers Brown, who I must credit with the "philosopher-kings" line. Yet her Senate confirmation for a federal judgeship is being held up, ironically by legislators whose very powers are being usurped by activist judges. But it is to be expected that as judges become legislators their confirmation hearings begin to resemble election campaigns. Today's judicial nominee just might cause tomorrow's social upheaval.

W. James Antle III is a senior editor for Enter Stage Right.

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