John Leo

Some admire the gay-marriage ruling in Massachusetts. Some don’t. But surely the heart of the story is the stupefying arrogance of the state’s Supreme Judicial Court. If you are going to stretch a state’s constitution beyond all previous understanding, and impose what many people believe is a fundamental redefinition of marriage, you don’t do it in a 4-to-3 vote. There is no consensus among Massachusetts voters for such dramatic change. On a liberal court, thought to be favorable to gay issues, there was not even a consensus among the seven judges who pondered the issue for more than a year. The three dissenters expressed some sympathy for gay arguments but also some serious legal doubts. Justice Martha Sosman wrote that as a matter of constitutional jurisprudence, “the case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition.” No matter. Chief Justice Margaret Marshall rammed the ruling through anyway.

In the manner of modern judicial elites, the four judges rode roughshod over the legislature and the voters. They shut down the compromise option of allowing gay civil unions. They constructed the ruling so the legislature could address the issue in only one way -- by ratifying what the court demanded. “Do it our way, or we’ll do it ourselves,” was the clear message. No, the judges wouldn’t want to leave open the possibility that democracy might break out in the legislature. The court also seemed to close the door on being overruled by a constitutional amendment. It ordered the legislature to act in accordance with its wishes in 180 days, and by law the constitution can’t be amended in less than three years. By then thousands of gays will have married. The four went further than any other state court has gone. Courts in Hawaii and Alaska approved gay marriages but made no attempt to hamstring legislators. In both states, legislatures passed constitutional amendments limiting marriage to heterosexual couples.

John Leo

John Leo is editor of and a former contributing editor at U.S. News and World Report.

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