“Judicial activism” is innocuous when compared to what the Massachusetts Supreme Judicial Court did last week by kicking us further down the slippery slope, when it held, “We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.”
The court exercised a lack of proper judicial restraint by utterly ignoring the will of the people and the constitutionally created path to social change: legislation. Recent polls report that more than 60 percent of the American people oppose redefining marriage to include same-sex couples and only 10 percent say such arrangements would improve society. So why does the Massachusetts Supreme Judicial Court in Goodridge think it can order up same-sex unions?
Because it believes it has the raw power to do so.
In June, in Justice Anthony Kennedy’s majority opinion, the United States Supreme Court declared, without constitutional text or precedent, looking to foreign court decrees, and ignoring the public health and cultural impact, that states could no longer proscribe sodomy between certain adults. Now the Massachusetts Supreme Judicial Court has followed a similar path.
The court ignored the Massachusetts Constitution, and admitted in its opinion that it didn’t have a legal leg to stand on when it ruled in favor of same-sex unions: “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.” By the 4-3 margin, one judge’s vote decided the fate of marriage in the Commonwealth.
The court also looked to foreign law instead of its own or other American constitutions. The majority wrote, “We face a problem similar to one that recently confronted the Court of Appeal for Ontario, the highest court of that Canadian province, when it considered the constitutionality of the same-sex marriage ban under Canada’s Federal Constitution, the Charter of Rights and Freedoms … In holding that the limitation of civil marriage to opposite-sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy …”
Conservatives are often attacked, mocked and portrayed as “Chicken Littles” for saying that incremental steps will lead to further decay, but the Massachusetts high court has confirmed the reality of the slippery slope. How?
This legal slide began in 1983 when a Massachusetts court held that a person’s sexual orientation or marital status is not relevant to a decision about what is in the best interest of a child for custody, Doe v. Doe, 16 Mass. App. Ct. 499, 503 (1983).
In 1993 the Massachusetts Supreme Judicial Court decreed that same-sex couples could adopt (Adoption of Tammy 619 N.E.2d 315 Mass., 1993). Now the same court says that because there are so many children in homosexual homes, those children need the protection of married parents.
Without the earlier court decrees children wouldn’t be in nearly so many such homes, so in other words, the court says, “Yesterday’s radical decisions against marriage and family law created the problem, so now we must allow same-sex unions to remedy what we created.” This decision may be the closest thing to a pure admission of the inevitable slippery slope an activist court has ever made.
And have we finally hit the bottom of the slope with the thud of same-sex unions? Hardly. There is much distance left to fall, and it only gets worse. In five or 10 years, what new problems created by Goodridge will the same Court “have” to solve with even more new decrees?
According to Eugene Volokh, a law professor at UCLA School of Law, polygamous and incestuous marriages are the next logical step, “By the way, concern that the Massachusetts homosexual marriage decision may lead to legalization of adult incestuous marriages and even polygamous marriages seem to me quite plausible … I don’t think one can ridicule arguments that a constitutional right to homosexual marriage may lead to rights to polygamous or incestuous marriage. Given the text of the Massachusetts decision, the arguments seem eminently plausible.”
If the court ignored the will of the people and the legislature in Goodridge, and the earlier case law, what’s to stop it in the next 10 years from approving polygamy, incestuous marriages, even group or self-“marriages,” and ultimately the abolition of marriage entirely? Nothing at all, apparently, but a revolution against judicial tyranny.
The court did not defer their decision to the legislature, as the Vermont Supreme Court did. But the Massachusetts Supreme Judicial Court did stay the order for 180 days. In that time frame lies much of what hope there is left for avoiding a cultural disaster in Massachusetts. The legislature can use the 180-day stay of the court’s order to approve a constitutional amendment defining marriage as between one man and one woman. Massachusetts residents may need to stage the modern equivalent of the Boston Tea Party if such an amendment is to pass.
The court has become a tyrannical force, willing and capable of wreaking havoc. This court redefined marriage and sent us sliding further down the slippery of moral degeneracy. May God help us.