Dec. 3, 2003
Will Massachusetts, the cradle of American liberty, let four
lawyers don the robes of oligarchy, override the wishes of the majority
of the people, usurp the powers of their elected representatives, and
sabotage the institution of marriage? Where is the fight that
manifested itself in Massachusetts men at the battles of Bunker Hill,
Lexington and Concord?
The Massachusetts Supreme Judicial Court ruled 4-to-3 to legalize
same-sex marriages. With elitist arrogance, the four-person majority
bragged: "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."
Indeed, it does. Traditional marriage of husband and wife is
fortified by a network of legal rights and duties spelled out in over a
thousand federal and 400 state laws. The four judges gave the governor
and the legislature 180 days to overturn nearly 400 years of
Those judges had no authority to change the definition of
marriage. They contemplated their navels and convinced themselves that
they alone could change social policy and make new law, and even
contemptuously opined that belief in traditional marriage is without a
The people of Massachusetts should tell the judges to stuff their
arrogance. "We the people" should rise up and say we are not going to
kowtow to judicial tyranny.
Regrettably, the response by Massachusetts public officials has
been pusillanimous. They are groveling before the four judges,
wiggling around in the hope the court might be appeased by a parallel
system of civil unions.
Governor Mitt Romney is trying to walk a tight rope of compromise.
While supporting a constitutional amendment to protect traditional
marriage, he said: "We obviously have to follow the law as provided by
the Supreme Judicial Court, even if we don't agree with it," and we
need to decide "what kind of statute we can fashion which is consistent
with the law."
But what "law"? There is no law that requires or even allows
same-sex marriages. The judges enunciated only special-interest
advocacy masquerading as legal reasoning.
Attorney General Thomas F. Reilly said the judges overstepped in
trying to shape social policy, but he wants to test an alternative
solution and then seek "an advisory opinion of the court." Au
contraire; we don't want any more advice from those judges.
State Representative Philip Travis, the lead sponsor of an
amendment to preserve the definition of marriage, has the right
response. He said that if the legislature doesn't act within the 180
days, the court can't force clerks to issue marriage licenses to gay
"When we pass 180 days, what are you going to do to the
Legislature?" said Travis. "With all due respect to the Supreme Court
. . . you've given us a decision and given it to us to enforce.
Therefore, if we don't enforce it, there is no remedy under the law of
This Massachusetts court decision isn't just about same-sex
marriage. It has posed the question whether Americans are willing to
submit to what Thomas Jefferson predicted would be "the despotism of an
oligarchy" if judges are allowed to be "the ultimate arbiters of all
All over the nation, special-interest advocacy groups are "forum
shopping" to find friendly judges willing to bypass the Constitution
and write their own social and sexual preferences into the law.
Plaintiffs are seeking out judges who are willing to cooperate in
deconstructing our culture by abolishing the Pledge of Allegiance and
the Ten Commandments to make the nation comfortable for atheists, and
to abolish marriage requirements to make the nation comfortable for
Gay rights activists have a nationwide strategy to make same-sex
marriage a constitutional right. The legal advocacy firm called
Freedom to Marry is joined in this effort by the Gay & Lesbian
Advocates & Defenders, the American Civil Liberties Union, Lambda
Legal, NOW Legal Defense and Education Fund, and Human Rights Watch.
They plan to accomplish in the courts what they cannot win in
elected legislatures. The gay lawyers will litigate to get other state
courts to use Massachusetts as a model, and the gays who marry in
Massachusetts will seek legal recognition in other states, challenging
their marriage laws and state Defense of Marriage Acts (DOMA).
The same-sex-marriage activists know that the legal profession is
predisposed to redefine marriage. The dissenting justices in Lawrence
v. Texas warned that the Supreme Court is imbued with the "law
profession's anti-anti-homosexual culture."
The dissenting judges in the Massachusetts same-sex marriage case
laid it on the line: "What is at stake in this case is not the unequal
treatment of individuals or whether individual rights have been
impermissibly burdened, but the power of the Legislature to effectuate
social change without interference from the courts. ... The power to
regulate marriage lies with the Legislature, not with the judiciary."
Massachusetts citizens should slap down their high court as the
citizens of Hawaii and Alaska did when confronted with the same
judicial impudence, and a nationwide backlash against judicial activism
should start to roll.