Wednesday, February 04, 2004

The high court in Massachussetts ruled that gays have the same right to marry as straights, at least in marriages sanctioned by the government. Predictably, this provoked outrage on two fronts.

The first is from those who simply don't want anything to legitimize homosexuals and homosexuality. They may grudgingly acknowledge that such things as exist but don't want homosexuals to be given any victory that might legitimize that existence.

The other outrage comes from people who don't like the ruling but don't think of themselves as homophobic (and frequently aren't). Their primary argument is pseudo-legalistic, not based on vitriol against gays. They contend the ruling smacks of (and this must be spoken with the greatest indignation) JUDICIAL ACTIVISM. To these folks, the ruling is tantamount to the courts "legislating." The job of making laws is for the legislature, not the courts.

The job of the judiciary is not to legislate. And the Mass. court is not legislating.

The Massachussetts' constitution states, "All people are born free and equal and have certain natural, essential and unalienable rights."

If straights can get state-sanctioned marriage but gay are not, then the two groups are not equal. If the Massachussetts' legislature passed a law that doesn't respect the constitution and the courts can't say so for fear of being labelled "judicial activists," then why have a constitution in the first place? What's the point of something if it's not going to be respected?

The alternative solution, which hardly anyone mentions, is simply for the state to get out of the marriage licensing business. That would leave marriage exclusive to the churches who could constitutionally discriminate however they wanted. There isn't really any compelling reason why the state has to license marriage, except perhaps as a revenue source.

I would PREFER that such changes be done via the legislative process. Although the legal legitimacy wouldn't be affected, it would certainly give the result more popular legitimacy. And the main point is to fight bigotry, not win a pyrrhic judicial victory.

I'd prefer it that way, but sometimes courts have to lead the way. Sometimes courts have to say, "This may be tradition, but it's against the constitution. Society may have ignored the contradictions for centuries but that is going to stop." This was done, for example, when courts (not legislatures) struck down bans on interracial marriage.

The federal constitution and, I'm sure, most state constitutions have clauses relating to the equal protection of citizens. I think these clauses should be removed. After all, any time anyone asks that those clauses actually be applied, people scream "JUDICIAL ACTIVISM!!!!!!!!!!"

If we want the government to subject different sets of law-abiding citizens to different standards, then let's drop the pretense of equality.

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