Why Goodridge Is Legally and Constitutionally Wrong     1/27/2004
By Jan LaRue, Chief Counsel

The four justices have usurped the authority of the Legislature to alter public policy on an issue of surpassing importance

Homosexuals in Massachusetts have had the same right to marry as heterosexuals—the right to marry a person of the opposite sex. Nevertheless, the Massachusetts Supreme Judicial Court on November 18, 2003, ruled by a 4-3 vote in Goodridge v. Department of Public Health, that limiting marriage to opposite-sex couples violates the Massachusetts Constitution.

Incredibly, the court said there is no rational basis for limiting marriage to a man and a woman. Chief Justice Margaret Marshall, who wrote the opinion, noted the historic ramifications: "We are mindful that our decision marks a change in the history of marriage law." Three justices, including an admitted lesbian, wrote strong dissenting opinions criticizing the court for usurping the Legislature's province.

The ruling is an egregious example of judicial overreaching. Predictably, the court claimed "established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards." [Italics added] For judicial activists, a written constitution "evolves," which makes their oath to uphold it meaningless while they act as an illegitimate super-legislature.

The court acknowledged that, "[p]rotecting the welfare of children is a paramount [s]tate policy," yet, held that "[r]estricting marriage to opposite-sex couples, however, cannot plausibly further this policy." The court rejected all political, economic, social, public health, educational, procreational, moral and religious reasons as a rational basis for limiting marriage to opposite-sex couples.

The court said: "Our obligation is to define the liberty of all, not to mandate our own moral code." Then the court imposed its own moral code on the people of Massachusetts: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." The very definition of marriage is being altered to something that it has never in history meant—and that directly affects every citizen of the Commonwealth. Furthermore, if there is no moral authority or "rational basis" for banning same-sex marriage, what is the court's "rational basis" for limiting marriage to two people? The court said the Constitution "forbids the creation of second-class citizens." Polygamists now argue that limiting marriage to two people makes them second-class citizens. Bisexuals can now claim that they are second-class citizens because they cannot achieve fulfillment in marriage unless they're permitted to be married to a man and a woman at the same time. What about the "liberty" of a brother and sister who are "lovingly committed in a long-term relationship"? A future decision by this court will probably find that denying marriage to these "relationships" denies them "liberty."

The four justices have usurped the authority of the Legislature to alter public policy on an issue of surpassing importance, and acknowledged as much by referencing the Legislature's "broad discretion to regulate marriage." If it were a legislative act, however, the people could remove the perpetrators at the next election and have the law repealed. Not so with justices who expect no consequences for their abuse of power and servile obedience by the Legislature.

John Adams, primary author of the Massachusetts Constitution, declared that in the Commonwealth of Massachusetts "the legislative, executive and judicial power shall be placed in separate departments, to the end that it might be a government of laws, and not of men." By this unconscionable ruling, the four justices have made themselves a government of men and not of laws.

The legislators, who also swore an oath to uphold the Constitution, should reject the court's ruling. Instead, on February 11, they should begin the process of enacting a constitutional amendment limiting marriage to a man and a woman, which provides the people of Massachusetts the final vote. They should also begin impeachment proceedings against the four who have willfully violated the separation and balance of powers in the Constitution they swore to uphold.

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