Supreme Court Refuses to Hear Mass. Gay Marriage Dispute
The Supreme Court of the United States today declined to hear a case disputing the year-old decision of Massachusetts’s highest state court, which ruled that the right to marry could not be denied to gay couples.
By refusing — without further comment — to hear the case, I feel that the Supreme Court is acting prudently and within the bounds of the law. They are, however, running somewhat afoul of the 1996 Defense of Marriage Act, which states that under federal law marriage is defined only as the union of two persons of opposite sexes. The Supremes have been reluctant to hear cases dealing directly with the DOMA in the past, but their decision not to hear this case could be seen as an indirect weakening of a law that some feel is already ripe for being struck down as unconstitutional. My personal opinion — as stated in my post on SEB about federalism and gay marriage — is that the DOMA is fundamentally flawed, and should be replaced with a similar constitutional amendment that doesn’t contain a nation-wide definition of marriage by gender.
What’s interesting (and amusing) about this is the lame arguments being used by social conservatives to combat the Massachusetts decision. To quote the Associated Press article:
Critics of the November 2003 ruling by the highest court in Massachusetts argue that it violated the U.S. Constitution’s guarantee of a republican form of government in each state. They lost at the 1st U.S. Circuit Court of Appeals in Boston.
Their attorney, Mathew Staver, said in a Supreme Court filing that the Constitution should “protect the citizens of Massachusetts from their own state Supreme Court’s usurpation of power.”
Federal courts, he said, should defend people’s right “to live in a republican form of government free from tyranny, whether that comes at the barrel of a gun or by the decree of a court.”
Merita Hopkins, a city attorney in Boston, had told justices in court papers that the people who filed the suit have not shown they suffered an injury and could not bring a challenge to the Supreme Court. “Deeply felt interest in the outcome of a case does not constitute an actual injury,” she said.
Did you catch that? Living in a nation where people of the same sex who love one another are permitted to express that love through marriage and to enjoy the rights and privileges which come with that institution is, apparently, equivalent to living under a tyrannical government with a gun pointed at your head.
I think these nimrods need to spend a few weeks in North Korea. Living under Dear Leader for a month or so might give them a bit of perspective, and help them better appreciate the freedom they enjoy as citizens of the United States of America. Maybe then they wouldn’t be so eager to deny those freedoms to others.
I don’t agree with this reasoning at the State level, but it would be tyrannical for a US Supreme Court to force one state to recognize a marriage authorized by another State or country. Otherwise, assume the State of Utah authorized polygamy. Would all State’s then be required to recognize polygamy? Why not? It’s consenting adults?
Or, assume one state defines “adult” as 6 years and up and then permits marriage between “Consenting adults.” Would all state’s be forced to accept marriages between 6 year olds? Between a 55 year old and 6 year old?
For the courts to be logically consistent in these matters, it would have to say government cannot legitmately regulate marriage between ANY consenting adults.
On what grounds would gay marriage be permitted, but marriage between two brothers not be permitted?
I think these questions lead to the obvious conclusion that State’s can regulate marriage and therefore it is up to society via a vote of the people to decide what types of marriage are appropriate.
You may call society’s choice discriminatory, but then others will call the denial of polygmast marriages discrimantory as well.
For unelected life-tenured judges to decide the issues against the overwhelming will of Americans is tyranny. The authority of the government is derived from the people, not from a select few tyrannical judges.
Again, I have no problem with the people deciding to permit gay marriage. My problem is with judges defining marriage against the will of the people. Where can a judicially reached definition logically end and why?
Comment by Rick Brady — November 29, 2004 @ 10:36 am
By the way, you are once again assuming a “right” already exists and it is being denied.
No right exists. Our laws are based on the Common Law and the Constitution. No precedent is found in Common Law (hundreds of years of common law) for gay marriage. If there is a right in the Constitution to gay marriage, there must be a right in the Constitution for marriage between ANY consenting adults. If a Court can change the definition of marriage, it can also change the definition of “consenting” and “adults.” Heck, it can change the definition of just about anything right?
If I were a MA resident, the Court would be extending a right to me that I do not currently have. Currently I do not have the right to marry a man. I only have a right to marry a woman. This is a NEW right, not an existing right being denied. NEW rights are granted by elected bodies, not by unelected judges.
Comment by Rick Brady — November 29, 2004 @ 10:41 am
Rick,
In response to your first comment, I do understand your unease about judicial decisions over-ruling the will of the people. Fortunately there are checks and balances against the judiciary, just like every other branch of government. The MA legislature — elected by the people, rather than appointed by politicians — is likely to put the issue of gay marriage before the state’s voters in November 2006. If a state constitutional amendment forbidding gay marriage or restricting same-sex unions to a lesser status is passed by a popular vote, there’s nothing the state court can do about it.
It would be a sad decision, in my opinion, but it would be in keeping with American principles of governance. Hopefully, over the next two years the people of MA will see that allowing gay people to marry hasn’t drastically changed their lives or brought about the end of the world as we know it.
Your second comment brings us into a stickier area, dealing with the semantics of civil liberties. One might argue that, by your logic, black people and women never had the right to vote in the first place. Did that right only exist once amendments to the US Constitution codified them, or were those actually inalienable rights that were merely recognized, belatedly, by the passage of those amendments?
Because of my personal moral beliefs, and my belief that the Constitution is a living and flexible framework for government, I choose the inalienable rights approach. I don’t believe that homosexuality is a sin or a danger to society, but rather just another way of experiencing erotic and emotional love for a fellow human being. As such, I consider “gay marriage” just another kind of marriage, and the denial of one set of people to marry to be a denial of an existing inalienable right.
It’s a philosophical difference that you and I will probably never see eye to eye on, but at least now you know where I’m coming from and why I speak about the subject the way I do.
Comment by Adam M. — November 29, 2004 @ 11:08 am
Yes, our inalienable rights are endowed by our Creator. But that gets into religion. To keep religion out of this and to avoid having someone (non-elected) determine what inalienable rights we have and don’t have, I choose to keep these decisions out of the courts. The inalienable rights we have are those specifically enumerated in the Constitution.
The Constitution is the result of political compromise. Women and Blacks were excluded from voting (property owning males could vote and black’s were both property and not a full person) in the Constitution. The Constitution gave political means for changing the governing document as society changed. The Constitution was changed and therefore Blacks and Women now have the right to vote. This is the way it ought to be. Remeber the government derives its legitmacy from the people, not from a Creator giving inalienable rights.
No problem. But unless “society” comes to agree with you, I cannot see how judges can extend this “right” to only gays to the exclusion of other consenting adults.
I expect my judges to be logically consistent. I think that once you carry this through to its logical conclusion, one cannot find grounds for denying ANY consenting adults (whether it 1000 different adults wanting to marry each other) from marrying.
This is why these things MUST be decided by society. I suggest you work hard convincing others that your opinion is right. I admire that. I don’t admire those who use the ACLU to subvert democracy and the Constitution.
Since you embrace the living breathing Constitution, I hope you will be fine with a Bush stacked court that overturns Roe v. Wade and starts allowing things like crosses on public land and the Ten Commandments in the Supreme Court rotunda… Hey - it’s living and breathing right? Good thing Bush’s YOUNG judges will have maybe 3 decades on the bench.
I really wish this didn’t have to come to this, but when the ACLU pushes so hard and so fast against the will of the majority of the people, what can anyone expect? If you molest a snake, it will bite you.
Comment by Rick Brady — November 29, 2004 @ 11:50 am
I’m avoiding the temptation to comment on your apparent characterization of the religious right as a serpent. It’s hard, but I think I’ll manage.
This is going to be a little scattered since I’ve got someplace to be in a minute. Here goes:
You and I seem to agree more than not on the issue of how the gay marriage debate should be decided, if not necessarily on what the right resolution is. The reason I support a DOMA-like constitutional amendment is because the ratification process is more democratic than having judges determine the issue for us. I’m saddened by the state decisions on gay marriage during the November 2nd elections, but I accept them as representing the wishes of those states’ voters.
I doubt Bush will be able to appoint more than one justice to the Supreme Court in his second term. With Rehnquist looking like the one to replace, this would not significantly change the balance of the court. There are already five relatively conservative justices and four relatively liberal ones.
The ACLU does go too far sometimes, but I’m glad to have an organization solely dedicated to protecting the citizens of the United States against government encroachment on civil liberties.
We needn’t bring religion into the equation, or even go outside of the Constitution when discussing gay marriage or gay rights. The right to marry whomever you choose could easily be interpreted as part of the constitutionally-granted right of free association. Some conservatives have already made similar points.
Comment by Adam M. — November 29, 2004 @ 1:23 pm
Thanks Adam.
Comment by Rick Brady — November 29, 2004 @ 2:41 pm
And thank you, as always, for injecting an alternative viewpoint into the discussion!
For the benefit of future visitors to this post, I feel somewhat obligated to point out that this may be what Rick had in mind with his snake analogy.
Comment by Adam M. — November 29, 2004 @ 2:59 pm
I have several problems with the ban on gay marriage, but here’s one that’s actually somewhat empirical.
The Republican party has traditionally been the party in support of small government. For the “simple, down-to-earth folk” who don’t want or need the government regulating their lives. Why, then, *why* is this the party that thinks that the government, rather than the couples themselves, should define what the “sanctity” of marriage is?
And this isn’t the only intra-party contradiction. What about the PATRIOT Act? That gave *huge* extensions to the government’s power over individuals, including law-abiding, natural born US citizens, yet the Republican party was its main pusher.
Comment by Chris Vincent — November 29, 2004 @ 3:44 pm
Chris,
I agree with you whole-heartedly. The Republican party has ceased to be the party of fiscal responsibility and small government, the party of civil liberties that was born out of an abolitionist stance to slavery in the 1800s.
Now they support the broken and discredited dogma of supply side economics, running up huge deficits while cutting taxes and increasing spending. They consistently push legislation that erodes civil rights and ignores the separation of church and state, attempting to bring us under the thumb of police agencies and force Americans to conform to their idea of moral propriety. The most frighteningly extreme of these ideologues — some of whom hold elected office in the federal government — adhere to an extremist branch of fundamentalist Christianity called Dominionism (among other things).
Dominionist thought holds that all aspects of life and of the state must be brought under the strict control of the church and must adhere to the precepts of fundamentalist Christian ideology. It is the Christian mirror-image of the Taliban, a truly terrifying development in American politics. You can learn more about the rise of Dominionism in America from The Yurica Report, a site maintained by former Christianity Today correspondent Katherine Yurica. “The Dominionist Directory” is a good place to start, as is this article.
Comment by Adam M. — November 29, 2004 @ 6:52 pm
I’ve heard of Dominionism before. Doesn’t that sect also hold that the earth is here for us to literally rape into waste? The justification, of course, being that the earth is temporary and that attempts to conserve it are meaningless… and that God granted all of its resources for mankind to abuse.
Comment by Chris Vincent — November 30, 2004 @ 1:53 am
That seems to be another part of it, yeah. They believe that once the whole world is brought under the control of the church, and all of humanity converted to their brand of Christianity, Jesus will return.
After that, all bets are pretty much off. Unlike most evangelicals, Dominionists believe that the second coming of Christ is still far in the future, but presumably the events described in the book of Revelation will literally occur when Jesus does finally return.
Since the believers will be Raptured away to safety while the world endures all this turmoil and destruction, the state of the planet it hardly their concern. Besides, we get a “new heaven and a new earth” when it’s all over with anyway, right?
Comment by Adam M. — November 30, 2004 @ 8:31 am
Oh, why did this had to be an election-year issue, folks? I mean more power to you. I think everyone reasonable thinks that some legal recognition is in order for same-sex couples.
But as I write this, it is already ’05, and Bush is president again, and they will end up with nothing much less allowed to be married. They could have shot for civil unions, and that could have been enough not to alienate that 100,000 or so Ohioans that tipped the scale for W. Kerry would be president, and the gay/lesbian community could be on their way to make history.
There is a lesson to be learned here people: shoot for the moon, and you might end up shooting yourself in the foot.
Comment by Kory Doszpoly — May 6, 2005 @ 2:08 am