Mass. Supreme Court runs amok: when the Massachusetts Supreme Judicial Court gave homosexual couples equal legal standing with traditional marriage, it crossed the line from judging law to making law.

Every elementary school student is--or used to be--taught that the legislative branch of government makes the laws, the executive branch enforces the laws, and the judicial branch judges whether the laws of the legislature have been broken or if statutes themselves are unconstitutional. That's called "separation of powers." But Massachusetts' highest court, the Supreme Judicial Court (SJC), brazenly obliterated that basic distinction between the legislative and judicial branches of government in the November 18 Goodridge v. Department of Public Health decision.

The 4-3 SJC decision openly admitted that laws passed by the legislature indicated that marriage consists of a man and a woman. "The only reasonable explanation is that the legislature did not intend that same-sex couples be licensed to marry," Chief Justice Margaret H. Marshall conceded in the court opinion. "We have recognized the longstanding statutory understanding, derived from the common law, that 'marriage' means the lawful union of a man and a woman."

The court also admitted, citing as example the 1810 case of Hanlon v. Rollins, that past Massachusetts courts have ruled that marriage "is an engagement, by which a single man and a single woman, of sufficient discretion, take each other for husband and wife." Marshall's opinion conceded the obvious: "Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries."

So if the court admitted the statutes have always held that marriage is limited to a man and a woman, and if past court decisions and common law tradition confirm this, then how can it rule that the law says same-sex couples have a right to manage? "The larger question is whether," Marshall wrote, "government action that bars same sex couples from civil marriage constitutes a legitimate exercise of the state's authority to regulate conduct, or whether, as the plaintiffs claim, this categorical marriage exclusion violates the Massachusetts Constitution." Say again'? Isn't this the same 1780 Constitution written by puritan John Adams?

Indeed it is. But the SJC majority didn't imply that John Adams favored treating homosexual couples on a par with traditional marriage. They concluded instead that "the marriage ban does not meet the rational basis test for either clue process or equal protection.... In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license."

In his dissent, Justice Francis X. Spina exploded this straw argument:

   What is at stake in this case is not the
   unequal treatment of individuals or
   whether individual rights have been
   impermissibly burdened, but the
   power of the legislature to effectuate
   social change without interference
   from the courts.... The power to
   regulate marriage lies with the
   legislature, not with the judiciary....
   The marriage statutes do
   not disqualify individuals on the
   basis of sexual orientation from
   entering into marriage....
   Whether an individual chooses
   not to marry because of sexual
   orientation or any other reason
   should be of no concern to the
   court.

The Massachusetts Constitution only guarantees a "right" to same-sex marriages if one assumes, as the SJC does, that "civil marriage is an evolving paradigm." Marshall ruled that the appellate court decision granting a "right" to same-sex marriage "refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards." Ah, evolving constitutional standards. In the vernacular, that means the Supreme Judicial Court opinion was not a judicial decision; it was a legislative act.

Disappointing Response

The disappointing response of Massachusetts leaders to the court decision suggests that a series of battles in the state and federal courts over many years may be inevitable. "I disagree with the Supreme Judicial Court," Massachusetts' Republican Governor Mitt Romney predictably stated on the day of the decision, "I will support an amendment to the Massachusetts Constitution to make that expressly clear." Despite the court's admissions that it hasn't the slightest authority to issue its ruling, Romney has nevertheless pledged to carry out the SJC decision. "I have to follow their decision with regards to the Commonwealth," he told the Boston Herald. It's a good thing the SJC didn't order Romney to classify all Republicans as Cocker Spaniels, or Romney would soon be passing out milk-bones at cabinet meetings.

Massachusetts has a centuries-old constitution whose authors would have been appalled at the notion of same-sex marriages and a Supreme Judicial Court that is usurping legislative powers. Yet the Republican solution to this naked usurpation is to call for changing the constitution while leaving the SJC alone. State lawmakers have the simple means available to them within the existing state constitution--without going to the extreme of amending that fundamental state body of law--to end the usurpation tomorrow by impeaching the offending judges. Massachusetts judges only serve during "good behavior," and usurpation is not good behavior under any definition of the term.

The Massachusetts state legislature should simply take Goodridge v Depart merit of Public Health as a letter of resignation from the concurring justices and impeach them en masse. One simple majority vote in the legislature could expeditiously end the matter for good in a day. But that doesn't appear likely.

Instead, high-profile opponents of same sex "marriage" such as Romney, Democrat Speaker of the House Thomas Finneran and the local Catholic Church leadership are pursuing an arduous and years-long "solution" of amending a constitution that the court openly says it is not paying attention to anyway. A Massachusetts state constitutional amendment requires passage by two successive sessions of the legislature, and a subsequent majority vote in a referendum. In other words, it would take years to accomplish.

The constitutional amendment effort begs the question: what good is a constitutional amendment when the court claims for itself the right to amend the constitution by decree? And the constitutional amendment battle would actually validate the court's decision by implying there is a deficiency in the state constitution requiring correction.

Denying God

Goodridge v. Department of Public Health is written almost as if the four justices who agreed to this decision looked at a copy of the Massachusetts Constitution for the first time, read the preamble professing "the goodness of the great Legislator of the universe," and assumed it was a reference to themselves. Without an understanding that American government is founded upon the concept of God-given rights, it is not difficult to manufacture artificial "rights" that are antithetical to Judeo-Christian morality.

The court decision championed actions to "ameliorate the harshness of the common law regime," claiming that "civil marriage is an evolving paradigm." Constitutional scholar John Eidsmoe explained that this was a natural result of chasing references to God out of the courts. Dr. Eidsmoe, a law professor at the Thomas Goode Jones School of Law in Montgomery, Alabama, told THE NEW AMERICAN: "If you decide that there are no standards of right and wrong that are anchored in the Bible and/or the Judeo-Christian tradition, then some of these things logically follow."

The SJC decision is the latest advance in a decades-long campaign by organized perversion to mainstream what was once the "unmentionable vice." The campaign took the form of a classic pincers campaign, with media portrayal of homosexuals--especially through Hollywood--as sympathetic people victimized by hateful religious zealots.

"The main thing is to talk about gayness until the issue becomes thoroughly tiresome," explained the 1989 manifesto for the homosexual movement, After the Ball: How America Will Conquer Its Fear & Hatred of Gays in the 90s by Marshall Kirk and Hunter Madsen. "[The] fastest way to convince straights that homosexuality is commonplace is to get a Int of people talking about the subject in a neutral or supportive way." Meanwhile, lawyers and leaders of the homosexual movement at the top could characterize the debate as one of civil rights and equality under the law.

The lavender lobby followed this basic strategy in Massachusetts. "We spent more time in Massachusetts talking about how marriage is a basic civil and human right," Gay and Lesbian Advocates and Defenders spokesman Mary Bonuato said after the victory. "The case demanded careful calculation," the Boston Globe reported on November 23. "The timing had to he right; the plaintiffs had to look like friendly next-door neighbors; the strategy had to be tailored to avoid a decision like Vermont's, which stopped short of marriage." The lavender lobby has indeed come a long way toward desensitizing the public about the once unmentionable vice. According to a Boston Globe poll after the decision, 50 percent of the Massachusetts electorate now supports the SJC decision.

Homosexual "marriage" is only one step in the campaign, with many more steps down to the abolition of all moral standards. The Massachusetts SJC redefined marriage as a union of "two willing spouses and an approving state," using the following formula: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." But outside of any grounding in objective biblical morality, "two willing spouses" becomes a completely arbitrary number. In his dissent, SJC Justice Robert J. Cordy pointed out that legalized polygamy could be next on the docket.

   The same semantic sleight of hand
   could transform every other restriction
   on marriage into an infringement
   of a right of fundamental importance.
   For example, if one assumes that a
   group of mature, consenting, committed
   adults can form a "marriage,"
   [Massachusetts law] infringes on
   their "right" to marry. In legal analysis
   as in mathematics, it is fundamentally
   erroneous to assume the truth of
   the very thing that is to be proved.

After all, polygamy has enjoyed far more acceptance than homosexual couplings as a form of marriage throughout both history and around the world today. Islam condones polygamy, and many of the ancient Hebrew patriarchs (including Abraham, David and Solomon) practiced polygamy.

The SJC gave the Massachusetts state legislature 180 days to "permit the Legislature to take such action as it may deem appropriate in light of this opinion," by delaying implementation of the decision. The state legislature should take advantage of that time by concluding that if the SJC justices want to become legislators, then it makes sense to have the Massachusetts legislature afford them every advantage toward this pursuit, beginning with unburdening them from any future judicial responsibilities. Impeach them without delay.