Thursday, February 05, 2004


I've haven't yet made any comments about the Massachusetts Supreme Court decision regarding gay marriage, but in light of the yesterday's legislative opinion to the Massachusetts State Senate, I have a few observations:
  • I find it interesting, and pretty ridiculous, that a court has ordered the state legislature to pass a law, and even specified a 150-day deadline to comply. Doesn't this strike anyone as a bit odd? The decision strikes at the heart of legislative supremacy, and in my view will ultimately result in the same divisiveness as caused by Roe v Wade.
  • The court decision makes the following proclamation about marriage: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." This is sloppy at best. John Derbyshire at National Review Online had this to say: "Do you, by God! Then you are construing it in a way it has never been construed before. I see nothing in your "construal" to prevent me from marrying my sister, for example. Is this actually OK in the state of Massachusetts?" The cultural institution of marriage predates the constitutional order as we know it today. So unless an activist court arbitrarily "construes" marriage in this fashion, you will find nothing in either the US or Massachusetts constitutions which allows for gay marriage.
Whether you support or oppose the concept of gay marriage (I oppose it), I think it's pretty clear that the normal constitutional order is under assault. You can count on this becoming a presidential election issue because, as soon as the MA law is signed, a gay couple from, say, California, is going to run there, get married, and then go home and demand that California recognize the marriage. This is going to happen, and the result will be a federal Constitutional amendment.

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