December 27, 2006
Court to Lege: You're Derelict In Your Duty - But Who Are We to Judge?
The Supreme Judicial Court in Massachusetts has ruled that the state legislature -- which voted to recess rather than accept a petition for a constitutional amendment to protect traditional marriage -- violated its duty by not voting on the petition, which would easily have gotten the 25% support it needed to be submitted to the people. In fact, the court "rebuked the Legislature for its 'indifference to, or defiance of, its constitutional duties.'"
But then, they went on to say they can't do anything about it:
Responding to a lawsuit spearheaded by Massachusetts Gov. Mitt Romney, the state's Supreme Judicial Court said it could not force another branch of government to act after lawmakers recessed last month without deciding to put the gay marriage issue on a 2008 statewide ballot.
We agree with this decision. I mean, you have to draw the line somewhere! True, this whole imbroglio began in 2003, when the court did exactly the opposite in Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)... force the legislature to act to allow same-sex marriage in the first place:
On the legal aspect, instead of creating a new fundamental right to marry, or more accurately the right to choose to marry, the court held that the State does not have a rational basis to deny same-sex couples from marriage on the ground of due process and equal protection. The court gave the legislature 180 days to change the law to rectify the situation.
But by golly, don't we all recognize that two wrongs don't make a right? (Although three rights do make a left.)
Just because the 4-3 majority in Goodridge (which supported same-sex marriage) was willing to stretch a point to order the legislature to comply with the Massachusetts constitution to create same-sex marriage, while those same four justices eagerly joined the three dissenters in saying the court didn't have the authority to order the legislature to comply with the constitution and allow the people to overturn same-sex marriage -- that's no reason to leap to the conclusion that there was anything political about the decision. Don't be such a cynic!
I admit that the distinction that allows the court to order the legislature in 2003 but prevents the court from ordering it in 2006 is too subtle for my untrained skull full of mush: the ratiocination is so deep that only a lawyer can understand it. But what do I know? I am only an egg.
From here, I suspect the spoilsport plaintiffs (including Massachusetts Gov. Mitt Romney, a presidential aspirant) will probably make a federal case out of it. We'll see whether three wrongs will finally make a right. (How many does it take, anyway?)
In the meanwhile, other states could begin using the Massachusetts technique to deal with irritating citizens who insist upon butting into the lawmaking process: the next time Ward Connerly gathers enough signatures on a petition to eliminate state-sponsored racism, the legislature should simply adjourn without looking at it. So simple!
Why didn't we think of it before?
Hatched by Dafydd on this day, December 27, 2006, at the time of 6:34 PM
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The Massachusetts state legislature (a.k.a, the Massachusetts General Court; and isn't that a pompous title?), sitting as a constitutional convention (I think), has finally been shamed into allowing the people to vote on whether to restore the traditio... [Read More]
Tracked on January 3, 2007 2:59 AM
The following hissed in response by: nk
"I admit that the distinction that allows the court to order the legislature in 2003 but prevents the court from ordering it in 2006 is too subtle for my untrained skull full of mush: the ratiocination is so deep that only a lawyer can understand it. But what do I know? I am only an egg."
Gee, Dafydd, what's so hard to understand? In the first instance the Court ordered the legislature to do what the Court wanted. In the second instance the Court was asked to order the legislature to do what the people wanted. Come on. Can we let the rabble overrule five Justices of the Court? What kind of constitutional democracy would you call that? (And if you remember, I support same-sex marriage.)
The above hissed in response by: nk at December 27, 2006 7:56 PM
The following hissed in response by: Paul
The Goodridge Court did not, as you suggest, "force the legislature to act to allow same-sex marriage ..."
Rather, "The court stayed the entry of judgment for 180 days 'to permit the Legislature to take such action as it may deem appropriate in light of this opinion.'"
Had the legislature failed to act, the Court would have invalidated the Massachusetts marriage statutes in their entirety.
But there as here, the court did not -- for it could not -- force the legislature to vote.
The above hissed in response by: Paul at December 27, 2006 8:28 PM
The following hissed in response by: yetanotherjohn
So the court could have "stayed" its decision on the constitutional violation by the legislature for 180 days and then invalidated all the legislation passed in the legislature session that unconstitutionally failed to do its duty. But they didn't. More narrowly, they could have invalidated the marriage law allowing gay marriage unless the legislature acted within 190 days. But they didn't.
I'm sorry if you are having trouble connecting the dots in this case, but it isn't hard.
The above hissed in response by: yetanotherjohn at December 29, 2006 7:03 AM
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