Stop, thief! stop!

Posted: Feb 17, 2004 12:00 AM

In our blessed land of the free, you can define a piccolo as a baked potato and then slather the thing with sour cream prior to chomping down. But mere assertion doesn't turn a piccolo into a baked potato. Only a judge, it seems, enjoys that prerogative.

A 4-3 majority on the Massachusetts Supreme Judicial Court calls the union of two men or two women "marriage," and suddenly, that's the way things are, shut your mouth and pay attention to the nice judges. Never mind the moral traditions of the human race and the legal precedents elaborating those traditions. Justices Margaret Marshall, John Greaney, Roderick Ireland and Judith Cowin have deduced, and decided, otherwise. Hail, Caesar!

Thus, last week, Massachusetts lawmakers were going at each other concerning proposals designed in varying ways to fix the problem birthed by the court, a problem entirely without precedent in human affairs.

When your top judges presume to redefine an institution as old as the human race, dealing with the new reality takes some creative adjustment. Do you pass a constitutional amendment overriding the court? Do you play around with language and formulas the court might see as meeting its test? Can you resolve meantime the social and cultural, not to say religious, tensions four judges have aroused? The debate in Massachusetts will resume in March, after a short break.

The seismic shocks travel fast. In San Francisco last week, the county clerk's office, at the mayor's urging, distributed marriage licenses to some 50 same-sex couples. These were promptly spliced -- or something -- by the county assessor. Though California's law limiting marriage to people of opposite sexes still stands, it has not yet sustained a court test. Such a test is coming. It is not in the least hard to visualize California's highest court -- this is California, isn't it? -- deciding that what is good for Massachusetts must be plenty good for folks out this way.

Over this whole debate brood the courts, as they have since last summer, when the U.S. Supreme Court yanked back the sanction it had years earlier given the State of Texas to ban sodomy. Justice Antonin Scalia presciently forecast that, thanks to the majority opinion, barriers to same-sex marriage were likely soon to start falling. The Massachusetts court majority ratified Scalia's prediction. Off their honors galloped in a new direction, defining sex and sexual practice in a manner more in keeping with science and logic. Their science, their logic.

Nearly four-fifths of the states have laws defining marriage as purely heterosexual. Will that stop the courts as the argument spreads to the heartland from the people's republics of Massachusetts and California? Here and there it may. Or will the U.S. Supreme Court do the heavy lifting for the redefiners, applying on marriage a national policy that flows logically from its sodomy law decision?

A national constitutional amendment to define marriage as the union of a man and woman becomes inevitable by the logic of the case. Only thereby can the courts be disarmed of their ability to redefine reality.

I caught Sen. John Cornyn (Republican from Texas and a former state supreme court justice and attorney general) making approximately this argument on CSPAN the other day. It is virtually impossible to argue against the necessity of such an amendment, as likely or unlikely its chances of ratification might seem.

The cry when a theft has been perpetrated is "Stop, thief!" There is no difference here. Judges, at both state and federal level, are in the process of stealing cherished possessions such as the people's right to determine for themselves the moral relationships on which their society rests. A jurist who claims to know better than the rest of us how to define reality steals the older reality, dropping on us, for replacement purposes, nothing more than a personal interpretation. Stop, thief! Stop!

That is what we now must shout. With all that's in us.