Posted on 11/30/2004 10:48:21 AM PST by NYer
WASHINGTON, November 29, 2004 (LifeSiteNews.com) - The US Supreme Court rejected Monday a bid challenging the Massachusetts law allowing same-sex "marriage." The Court declined the hearing without comment.
In 2003, the Massachusetts Supreme Judicial Court ordered the state government to rewrite marriage laws to include same-sex couples. Since the decision, approximately 3,000 same-sex Massachusetts couples have 'married'. Robert Largess, Vice President of the Catholic Action League, along with eleven Massachusetts legislators launched the suit. Their initial challenge, heard at the 1st U.S. Circuit Court of Appeals in Boston, was lost.
In 2006, it is predicted that the issue will come before voters in a referendum during the next Massachusetts election. Earlier this month, 11 out of 11 states voted overwhelmingly to preserve marriage as the union of one man and one woman, while President George W. Bush has promised to enact a constitutional amendment on marriage while in office.
"This decision highlights the need for an amendment to the United States Constitution protecting marriage and defining it as the union of one man and one woman," Mathew Staver, President and General Counsel of Liberty Counsel, said in a release. Liberty Counsel represented Largess and the legislators in the suit. "Marriage will be defined by someone. I would rather have it defined by the people of the United States instead of the judiciary."
"This battle is far from over," he concluded. "The Constitution should protect the citizens of Massachusetts from their own state Supreme Court's usurpation of power."
Ping!
The Massachusettes Supreme Court issued a ruling on the Massachusettes Constitution. The Supreme Court was right in not getting involved.
So long as no provisions of the US Constitution are violated, SCOTUS has no power to review purported violations of state constitutions.
Yeah, they rewrote it...
Nor should they. This is a matter for Massachusetts, not the Feds.
"Due process" and "interstate commerce" works for everything else...
Maybe. But that is still no reason for the U.S. Supreme Court to get involved.
I agree - that's how it should work.
Then again, many will argue that the Supreme Court is "inconsistent" to say the least in deciding where there is a violation of the federal Constitution and where there is not. Abortion, the sodomy case, etc.
But the general topic could fill several law treatises, and probably has!
Understood.
Looks like the state is taking care of it though, I hope.
I fear you're right. However, you only need 4 SCOTUS justices to agree to hear a case, so it looks like even the conservative justices didn't want to stretch to hear this one.
Seems to me that the Mass judges overstepped their authority here. Gay marriage would fall into the category of things within the Governor's jurisdiction until the legislature acted ~ This is the old NO SURPRISES doctrine so little observed by judges looking into penumbras!
Eventually we have to take the entire class of people identified as judges out to be flogged.
No travel to Massachussets, here.
It seems the Mass. S.C. DID violate the U.S. Constitution by denying the Citizens of the state a replublican form of government. Judicial activism (legislating from the bench) is a usurpation of legislative powers, which is the hallmark of a republican (representative) form of government and the basis for the rule of law.
Nullification of the legislature is nullification of a republican form of government, which the U.S. Constitution guarantees to each state.
So the argument isn't about marriage, it's about judicial tyranny. The case should be re-submitted on that basis.
What if the MA SJC ruled to uphold polygamy?
I have a hard time with a legal princple that allows lower courts to uphold laws that institutionalize intrinsic evils, the criminalization of which would incur no social evil. For example, I can understand how the legalization of particular vices like prostitution and drug use could be justified inasmuch as criminalization may cause greater harm to society. I don't see how criminalizing an intrinsic evil like homosexual "marriage" harms society.
Don't know. The MA SJC can easily ignore the results of a referendum, can't they? And it's an open question as to whether an amendment to the MA Constitution can be passed that does not include "civil unions," "marriage" in everything but name. I'd say the situation in MA looks bleak.
Fair enough.
Somehow, the "balance" will be tipped in the future. people won't let courts keep redrafting laws and forcing amendment after amendment. I don't know what the result will be. Term limits for judges? Then basically we've ratified their status as a "super legislature."
I don't know.
AFAIK, SCOTUS does not have any power to determine the marriage laws of individual states. Whether a polygamist marriage in MA would need to be recognized by CT would be a question for SCOTUS, IMO.
I have a hard time with a legal princple that allows lower courts to uphold laws that institutionalize intrinsic evils, the criminalization of which would incur no social evil.
For the question of determining issues under the MA constitution, the MA SJC is not a lower court in comparison to SCOTUS. Assuming no federal or constitutional issues exist, the MA SJC is higher than SCOTUS in this area.
Whatever the moral issues involved, SCOTUS simply has no jurisdiction here. To allow SCOTUS to determine whether gay marriage is constitutional under the MA constitution would put the last nail in the coffin of federalism.
The legislature of MA has the power to amend the MA constitution so as to eliminate gay marriage. MA still has republican government (despite the judicial activism of its Supreme Court). The legislature has just chosen to not exercise its power (probably because the majority Democrats in the MA legislature agree with the court's decision).
Nullification of the legislature is nullification of a republican form of government, which the U.S. Constitution guarantees to each state.
If that were the case, no state could constitutionally have a court that could overrule the decisions of its legislature.
I fail to see that. If the court legislated from the bench, which it did when it re-defined a word with a specific meaning to one that has an ambiguous meaning, it dis-enfranchised the people of Mass. who had no representation in the matter through its legislature.
That nullified their republican form of government.
In that their legislature failed to act, the only remedy for the people is to file an action against the state which stands in violation of Article IV of the U.S. Constitution.
"The legislature has just chosen to not exercise its power (probably because the majority Democrats in the MA legislature agree with the court's decision).
Exactly why the people should seek remedy to restore its republican form of government
(You quoting me:) "Nullification of the legislature is nullification of a republican form of government, which the U.S. Constitution guarantees to each state."
To which you replied, "If that were the case, no state could constitutionally have a court that could overrule the decisions of its legislature."
I was referring to the Mass. court side-stepping the state legistlature, not over-ruling it. Legislating from the bench is side-stepping, which in effect, nullifies the legislature's existence.
"Nor should they. This is a matter for Massachusetts, not the Feds."
My state must not recognise such a 'marriage' which is incapable of a genuine consumation. Perhaps you could consumate a marriage with an animal of opposite gender, such as a dog, but I would not want that marriage recognised either.
"If that were the case, no state could constitutionally have a court that could overrule the decisions of its legislature."
Huh? Who is the law maker? The court? The legislature is the law maker. The court is supposed to read the law and make sure the law is clearly understood. English should be its primary study. To read, to understand what the intention of the legislature is. I guess there are imaginary body parts that we are not aware of, but the courts are, huh? They consumate the marriage with imagination and little more than role-playing. One part of the body being sodomised is not a consumation.
But oh, the law interpreters overlook that little point, don't they? It's all about personal gratification, not a certain act that requires different genders. A man could marry a blow-up doll and seek to insure himself and his 'wife'.
It would appear that, under the MA constitution, the courts have the power to make decisions as to the constitutionality of laws passed by the legislature. The MA legislature can always amend that constitution.
"Legislating from the bench is side-stepping, which in effect, nullifies the legislature's existence."
And it is vital to remove such judges from the bench, just as a politician who uses tax dollars to reward his concubines should be impeached and removed. Both are tyranny.
"It would appear that, under the MA constitution, the courts have the power to make decisions as to the constitutionality of laws passed by the legislature."
I never imagined that any state would be so gullibe. My apologies. I assumed too much of that state.
Wait a minute, though. What law in Massachuttses was legislated that calls sodomy a consumation of marriage? Did the state legislature ever conclude that? If not, then the courts created a law of their own.
But the legislature is free to impeach the judges or amend the MA constitution. If it fails to do so and the people of MA are unhappy with that failure, they can elect new representaives.
In that their legislature failed to act, the only remedy for the people is to file an action against the state which stands in violation of Article IV of the U.S. Constitution.
I'm not sure I follow your point. Just because the legislature refused to take a certain course of action doesn't mean that there has been a collapse of republican government in MA.
I think most, if not all, state supreme courts have the power to review the (state) constitutionality of state laws.
The question was whether the MA definition of marriage (as present in state law) must allow for same-sex unions. The MA supreme court ruled that limiting marriage to straight couple only violated the MA constitution.
The Supreme Court has held (I don't have the citation handy, but I remember reading it) that the "republican form of government" clause cannot be enforced by the courts, and that only Congress can decide that a state has violated that clause.
Thank you for putting up with my ranting. I agree with the following statement:
"But the legislature is free to impeach the judges or amend the MA constitution. If it fails to do so and the people of MA are unhappy with that failure, they can elect new representaives."
Absoultely. I would add that any voter block that allows such insanity to go this far is the laughingstock of our great country, and a threat to our national unity.
However, is my state, the Commonwealth of Virginia, required to recognise marriage licenses of all other states? If someone marries a chimp in Wallawalla Land, must we consider that chimp to be his lawful wife? Will my state's insurance companies be required to give it coverage as his wife?
Up until 1960, interracial marriages were illegal in Virginia, and Virginia did not recognize interracial marriages that had taken place in other states. So there is precedent on the books.
That's the big question. Under the Full Faith and Credit Clause of the Constitution, states have to recognize each other's laws and judgments (if I sue you in NY, a NJ court has to recognize the judgment).
That being said, there are exceptions. Especially when it comes to marriage. Some states do not recognize other states' common-law marriages, for example.
I don't think that it is a given that a MA gay marriage will force gay marriages on all the other states.
"The MA supreme court ruled that limiting marriage to straight couple only violated the MA constitution."
Ok. I get your point. But it still seems clearcut to me. They did have the authority to ban all future marriage, which was in their jurisdiction or even to retroactively ban all marriage, period, until the marriage laws were 'fair'. But instead, they create their own law. That is a clear-cut intrusion of the legislative branch. What if they say that all men with blue eyes must pay special taxes, 'according to the constitution'? Would the Supreme Court stay out of that one, too?
"That being said, there are exceptions. Especially when it comes to marriage. Some states do not recognize other states' common-law marriages, for example."
That's comforting. And thank you for your judicious input. But I'd just as soon amend the Constitution anyway. It's time to rap these judges on the nose with a newspaper. FReegards....
If the perp supremo(s) in Mass. can be removed by impeachment, I can't understand why the people of the state are not initiating a movement toward that end. Are all the attorneys in the country on the side of the judges?
Regardless of what the SCOTUS holds, the Constitution states otherwise:
Article IV, Section 4:
"The United States shall guarantee to every State in the Union a Republican Form of Government, . . . "
What good is the guarantee, or the Constitution itself, if the SCOTUS can set it aside?
Where do the people cash in on the guarantee? If you bought a new car under guarantee will the factory honor it? Usually, if the problem falls under the guarantee and has not expired.
Since when did the guarantee in the Constitution expire?
Since when did the people's right to representative government expire?
"Are all the attorneys in the country on the side of the judges?"
Good question. Here's a roundabout answer:
They were generally educated by likeminded professors.
There is a move to impeach the judges there, but the local media, also educated by likeminded professors, don't want to give them any sense of unity. They need to find unity from some grass roots symbol. That is not easy. FReegards....
See my Reply # 40.
So how would the people of Mass. present this to Congress for remedy? It's apparent their own legislature has abrogated it's responsibility and washed their hands of the matter. A DOMA is not the remedy for judicial tyranny. That's a different issue.
Well, let's not forget that it's the people of the state that were guaranteed a republican (representative) form of government. The legislature is the avenue toward that end. If the court replaces the legislature, which it did when it created law, where is the representation?
Thanks for your comments, AWM. FReegards!
A symbol? I submit:
Yes, I understand that. Thanks for the reminder. SCOTUS wimped out on the 16th Amendment too. ;>
I think Congress will be involved at some point, and in some way. Not necessarily for a defense of marriage amendment, for that is a different issue -- but hopefully to find a method to restore representative government in Mass. I don't remember if there ever was a case where congress was required to make good on its guarantee.
"My question remains: Are the initiatives/referenda that conservatives have used to enact tax reform and protect traditional marriage also violations of the guarantee of republican government as they are exercises in direct democracy and not the result of republican representation?
Good questions, rad. I have not studied them, but worthy of a thread of its own. If you start one, ping me. Thanks. And thanks for your comments.
No prob. Agreeable disagreement can be rare and should be honored here.
What "lower court"? The Supreme Court of Massachusetts is the highest court for judging legal disputes that 1)arise in Massachusetts and 2)do not fall within the specifically delimited fields of jurisdiction granted to the federal government.
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