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Opinion, Salem News, April 13, 2006
It's difficult to look at the rulings of the Massachusetts Supreme Judicial Court on gay marriage and not be struck by the absence of clear, consistent reasoning.
In its 2003 decision legalizing gay marriage in Massachusetts, the court's 4-3 majority insisted that, under the state constitution, same-sex marriage cannot be prohibited.
The Massachusetts constitution “affirms the dignity and equality of all individuals” and “forbids the creation of second-class citizens,” the court said; and any law barring same-sex couples from marrying “violates the basic premises of individual liberty and equality under law” that the state constitution guarantees.
This is the same court that recently — in a case involving whether out-of-state, same-sex couples could be married in Massachusetts — upheld a 1913 law that had been designed to prevent interracial marriages. So much for the “dignity and equality of all individuals.”
The court's strained illogic on this matter ably shows that legislating by judicial fiat is a dangerous thing. Important societal questions, such as the redefinition of an eons-old concept of marriage, is best left to the people, not a seven-person panel of muddle-headed thinkers.
The 1913 law in question prohibits the marriage in Massachusetts of nonresidents if that marriage would be illegal in the parties' home state. There is no record of debate on the law, but some legal scholars suggest it was a response to the nationwide scandal of the day — boxing's heavyweight champion Jack Johnson, a black man, had married a white woman. Massachusetts by this time had rid itself of its own law prohibiting interracial marriage, but 29 states still had such laws on the books.
The 1913 law came again to prominence after the Supreme Court decision legalizing gay marriage in Massachusetts. Tom Reilly, attorney general and Democratic gubernatorial candidate, who has tried to place himself on both sides of the gay marriage divide, insisted the 1913 law prohibited out-of-state gay couples from being married in Massachusetts.
Same-sex couples from New York and Rhode Island challenged the law, which a Superior Court judge upheld. The SJC affirmed the lower court's opinion that the 1913 was valid — but ordered the judge to review the New York and Rhode Island constitutions to see if they truly do prohibit same-sex marriage.
So now we will have a Massachusetts judge deciding what two other states' constitutions say. Presumably, if the judge finds no bar to gay unions in those constitutions, the marriages can go forward. What the courts and people of New York and Rhode Island think means nothing to a Massachusetts judge fighting for “individual liberty and equality under law.”
This isn't representative democracy. This is tyranny — the tyranny of a handful of high-minded jurists who believe they know what's best not only for the people of Massachusetts, but those of two other states as well.
This is why the Massachusetts Legislature must go forward with plans to put a constitutional amendment on gay marriage before voters. Only the voters have enough sense to put a stop to this madness.
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