July 10, 2006

In Shocker, Mass Court Rules According to Law

Hatched by Dafydd

Here is a shocking headline... and the sad part is that such a ruling should come as a shock:

Mass. Court Backs Gay Marriage on Ballot

The same court that made Massachusetts the first state to legalize gay marriage ruled Monday that a proposed constitutional amendment to ban future same-sex marriages can be placed on the ballot, if approved by the Legislature.

The ruling was in a lawsuit brought by gay-rights supporters who argued that Attorney General Tom Reilly was wrong to approve the ballot measure because the state constitution bars any citizen-initiated amendment that seeks to reverse a judicial ruling.

In a unanimous decision, the Supreme Judicial Court said the constitution does not bar citizen initiatives from making prospective changes to the constitution, even if that effectively overrules the effect of a prior court decision.

What is shocking is that so many simply presumed that the Supreme Judicial Court of Massachusetts, because it demonstrably supports same-sex marriage (SSM), would therefore rule that the state constitution bars citizens from changing the state constitution. What stuns is that this was, indeed, the very argument advanced by Democratic backers of SSM: that "gay marriage" is so urgent, that citizens of a state are barred even from attempting to change the constitution, if that would eliminate SSM.

Those of you who support SSM -- think about that. I know there are many who support SSM (or don't care about it) but who oppose imposing it by judicial fiat; Patterico fits that description. But what does it say about a position that it has never been instituted except by judicial fiat? Those of you who actively support SSM as an "equality" issue... aren't you at least made uncomfortable by the fact that your fellow activists argue in the same breath in favor of "equality of marriage" -- and also that citizens cannot even amend their own constitutions?

This is so extreme and radical a position in favor of SSM that it unanimously disgusted the very same court that imposed SSM by court decision!

This is not normal for a supposed liberty. The vast majority of those who support freedom of speech, for example, and who oppose an amendment against flag burning, do not in the same instant try to get the Supreme Court to prevent it from being submitted to the states for ratification. Rather, they lobby Congress to vote against it and -- if necessary -- will lobby citizens in the states to vote against it.

The most bedrock principle of a constitutional republic is that "governments are instituted among Men, deriving their just powers from the consent of the governed," which I hope sounds at least vaguely familiar. If "the Cause" ever becomes so important that it supercedes this core value -- if its patriotic defenders are nevertheless willing to climb into bed with tyrants who would burn down the very concept of representative government, if that's what it takes to advance the Cause -- then something stinks to high heaven about the Cause itself. (This is true even if the patriots subsequently denounce just such tactics as their allies are using while continuing to fight alongside them.)

Let me introduce a term: tyranny creep. Tyranny creep is the tendency of people who strongly support something most people oppose to begin calling for more and more dictatorship to overcome the "fools and knaves" opposing their wonderful policy.

Recall Al Gore's mantra to "count every vote" -- while simultaneously trying to nullify as many military ballots as possible, and even more spectacularly, using the courts to try to disenfranchise all absentee voters in two entire counties in Florida: Martin and Seminole counties.

It's logically consistent to support an unpopular position but oppose its imposition by force... but it may not be rationally consistent in the real world, if finding other such fastidious supporters is as rare as finding Ted Kennedy sober. It should at least give pause to find oneself fighting shoulder to shoulder with those who would, in fact, force the Cause down our throats, with or without our consent -- and who then go even further to silence opposition and prevent even constitutional amendment, if that might threaten the great Cause. (Thomas Sowell's seminal book the Vision of the Anointed is required reading for any patriotic supporter of SSM.)

At some point, the patriot has to answer a question: by giving conservative "cover" to such anti-democratic forces, does he do more harm than the supposed good done by advocating the Cause in the first place?

It's a truism, as Larry Niven first noted, that "there is no cause so noble that it will not attract fuggheads." I would never suggest that we should abandon liberty because a few unuseful idiots use the term to miscall their bizarre tyrannies, when in fact honest brokers of that word far outnumber the dishonest. But when the "fuggheads" outnumber the noble supporters by 30, 40, 400 to 1, maybe it's time for Mr. "1" to rethink his association with the 400.

Is any cause so noble that it's worth defending, even if nearly everyone on its side is a fugghead? Or is it possible that the problem is the Cause itself, rather than just a few bad monkeys spoiling the whole barrel?

Hatched by Dafydd on this day, July 10, 2006, at the time of 1:34 PM

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Tracked on July 12, 2006 11:12 PM

» The "Loving" Cup from Big Lizards
In another shocker today, the 8th Circuit Court of Appeals overturned a lower-court ruling and restored Nebraska's constitutional amendment restricting marriage to the traditional one man, one woman it has always been. Once again, radicals seeking to d... [Read More]

Tracked on July 14, 2006 4:08 PM


The following hissed in response by: Big D


Count me in the "I don't care faction" on this issue. I understand the arguments both for and against the issue, and could be swayed either way with a well reasoned argument.

But you nailed it on the head. What upsets me about the pro-SSM side is their inability and/or unwillingness to make their case intelligently. They rely on minutiae of the law, rather than the strength of their arguments.

Also they forget what one judge giveth so easily, another can take away. This is the corrosive legacy of Roe V. Wade, and why someone could be in favor of allowing abortion, and think the ruling an abomination.

You forgot the first step down the road to tyranny, which Monkyboy so frequently displays. That is to demonize your rational and principled opposition. Call them tyrants. Compare them to Hitler. Mention gulags if you can. Dehumanize and degrade them to the point that any action taken on behalf of your side seems, by default, to be right, and just, and good. It saves a lot unnecessary thinking.

Because if Bush = Hitler, why then it is okay to lie right? Wouldn't you LIE to get rid of HITLER? Wouldn't you try to steal an election, from HITLER?! The constitution? It is just a document that keeps HITLER in POWER and deserves to be trashed. Secrets? Why any secrets HITLER is keeping should obviously be immediately exposed to the light of day.

This is why I get so adjevectally agitated in the breathless hyperbole on the left. It breeds mobocracy, which slides inevitably into tyranny.

The above hissed in response by: Big D [TypeKey Profile Page] at July 10, 2006 5:21 PM

The following hissed in response by: rich

The concurring opinion by Justice John Greaney should be a fair warning that this only lets the question be considered by the legislature actng as a constitutional convention over the next two years (If the Legislature does not illegally refuse to consider it twice as required to get on the ballot.)

Massachusetts has a history of passing constitutional amendments that are then ignored by the Court. This happened with the death penalty which was ruled unconstitutional under the state constitution in the 1970s. The voters passed a constitutional amendment making the death penalty constitutional. The court then ruled that this amendment could not be fairly applied and thus was unconstitional under the state constitution.

Remember this is the same Court which held that nude dancing was a constitutional right under the state constitution but then held that a parade was not for the reason that a parade was not speech! Fortunately the parade decision was overturned by the Supreme Court of the United States. The majority opinions in these two cases were written by the same judge!

This court does what it wants, when it wants to. They think they are so smart that they are the capitalist version of the vanguard of the proletariat.

The above hissed in response by: rich [TypeKey Profile Page] at July 10, 2006 6:43 PM

The following hissed in response by: Dan Kauffman

I guess you and Dafydd think the Supreme Court thwarted "the will of the people" in its Loving v. Virginia ruling that threw out the laws of 16 states that made it a crime for blacks, asians and native Americans to marry, or in some case, even date, whites.

One more Christianist on the Supreme Court and the right of the people to jail people in mixed marriages will be restored...

The above hissed in response by: monkyboy at July 10, 2006 05:40 PM

Not as long as they are not a judicial activist.
We are in more danger from the Progressive Left handing down opinions that have no basis in Constitutional Law.

for instance using International Law as precedent?

Hmm there being 1.2 Billion Muslims maybe some moonbat secular judge will allow stoning for adultry.

The above hissed in response by: Dan Kauffman [TypeKey Profile Page] at July 10, 2006 7:42 PM

The following hissed in response by: Big D

Gee Monkyboy, I didn't expect you would be able to descend into gross self parody so quickly. Bravo!

Ah well. For the record I completely agree with Loving v. Virginia. In that case the states were creating laws in conflict with the plain intent and text of the federal constitution.

Did you notice something? I said the Supreme court should have made their finding based on the conflict between the federal constitution and the state laws. NOT that they should make their finding because it is BAD or WRONG to criminalize interracial dating.

Of course criminalizing interracial dating is entirely abhorrent behavior. But the legislature writes the laws. The executive enforces the laws, and the judiciary makes sure that the laws are being enforced as written and resolves any contradictions. If you have a beef with a bad law, take it to the legislature, or better yet take it directly to the people.

When a judge starts ruling on how he "feels" about a case rather than what the law says, before long you have judges that "feel" someone must be guilty of a crime, despite evidence to the contrary. The what?

And of course you fear one more conservative judges on the Supreme court because you fear they will behave like liberal judges, and start ruling on their feelings. Well, put your mind at ease. Conservative judges (in general) strongly believe in the proper function of the Judiciary. It is the liberal judges you should fear, since they rule by the whims of their heart.

But, hey. What do I know? I'm probably a Republican, which means to you I am automatically a racist, sexist homophobe subhuman crypto-fascist, right Monkyboy?

You must get tired, shoving everyone you meet into so few tiny little boxes.

The above hissed in response by: Big D [TypeKey Profile Page] at July 11, 2006 10:19 AM

The following hissed in response by: Big D


A casual reading of what I wrote would indicate that I am Big D, not Dan. Try to remember, the proper way to respond to a post is to read, think, THEN type. You keep skipping steps.

Obviously you have not the slightest idea what this thread is really about. We are discussing judicial activism and the proper separation of governmental powers. Focus. Remember, read, think, then type.

Plain text and intent? Don't waste my time simian, make your own arguments. Can you do it? You do have a decent case here. Try making it. I'll wait.

Maybe I can help you out. Have the legislature (state or federal) pass a law legalizing gay marriage. If such a thing were to occur it will have my full and unequivocal support. I'm also sure it would pass muster with the supremes, yes, even the conservative ones.

So then what's the problem with gay marriage? Why don't we just pass a law clearing this whole thing up? Oh, right. It would take too much time to convince people. Or worse, people may be actively against it. Can't have that.

Better just to find a sneaky way to cram it down everyone's throats. Trust us, we're liberals. We know what is best for you.

The above hissed in response by: Big D [TypeKey Profile Page] at July 11, 2006 1:21 PM

The following hissed in response by: Big D


Your repeated attempts to elicit a response regarding the constitutionality of inter racial marriages is quite comical.

Let's cut to the point, shall we? If I could not find such justification (and you seem to imply that I could not, at least to your satisfaction), then the result is that the Loving v. Virginia ruling was created out of whole cloth by the court. Since I've said I'm against the court taking such actions, why then I'm a racist and beneath contempt. Ouch! Set match and point. I couldn't possibly have seen that coming. What daring! Good show!

Ah the liberal mind at work - win the argument by somehow, someway, making your opponent into a racist. I didn't think you could do it here, but you've somehow managed it. You are a joy to behold, sir.

So to summarize your position (since you seem oddly unwilling or unable to do so yourself), judges should be free to void laws whenever they violate whatever they consider to be right and just, no matter what the constitution, precedent, or common sense invokes. Therefore all judges MUST be liberals and support a living constitution, continually open to revision and reinterpretation at their whim. Secularists only need apply for such a position.

Sound about right? Such a system would be so enlightened, just, and good. Such a system would only grant liberties, never ever take them away. Beautifully happy tyranny. Who wouldn't want that? I am ashamed at my nervousness regarding this delightful future.

Ah yes, the side note. Must you always have one? In review I see it is true. A standard of your posts. Some item only tangentally related to the topic, liberal Internet flotsum, with some vague suggestion that soon the black helicopter will be landing on my doorstep. I always get a kick out of your side notes.

The above hissed in response by: Big D [TypeKey Profile Page] at July 11, 2006 6:47 PM

The following hissed in response by: cdquarles


Here's a clue for you. Marriage is an expression of religion (Christian), something protected by the First Amendment's text. As an expression of religion, marriage is by definition a religious joining of a man and a woman. Race is not relevant here. As such, barring interracial marriages violates the Fourteenth Amendment, the text of which altered the Ninth and Tenth Amendments with respect to equal protection under the law. Homosexuals cannot marry by definition. They can shack up and the States can codify things like civil unions; but neither of these things are marriages. Therefore, interracial marriages are protected by the Federal Constitution, as are civil unions.

The above hissed in response by: cdquarles [TypeKey Profile Page] at July 12, 2006 11:05 PM

The following hissed in response by: Big D

Monkybot couldn't make a rational argument to save his life. So perhaps I'll make it for him:

Is homosexuality genetic or a choice? If it is a choice, well, we regulate all matter of sexual choices (prostitution, child sex, sex with animals, pornography etc.) with little to no constitutional relevance. Interracial couples may choose to have a relationship, but they cannot choose the color of their skin. Since we do not prohibit heterosexual adults of the same race from marrying, then it would seem that interracial marriages would be protected under various constitutional amendments, while homosexual marriage would not be. I believe that laws prohibiting prostitution would be automatically unconstitutional if they limited only African American prostitution.

If homosexuality is genetic, then maybe the constitution has some bearing on the issue. However, you risk classifying homosexuality as abnormal, a disease, a medical dysfunction and all the negative baggage that brings.

So, what's it to be? Nature or nurture? Perhaps we should have a potentially arbitrary judicial decision tell us the answer.

Monkybot - do you get the point, the big point? You lie awake at night worrying about Bob Jones appointing Christian judges (or some such rot), when the solution is staring you in the face. End judicial activism. Force elected (and potentially accountable) representatives to decide these important issues and limit judicial power.

Judges will just want to cut the baby in half.

The above hissed in response by: Big D [TypeKey Profile Page] at July 13, 2006 1:32 PM

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