- The Washington Times - Monday, November 24, 2003

Fringe Senate Democrats filibustering against President Bush’s judicial nominees purportedly celebrate “mainstream” judges who will cherish precedents and eschew legal pioneering. A towering and vocal liberal obelisk, Sen. Charles Schumer, New York Democrat, sleeplessly crusades for a “mainstream” litmus test in the nomination and confirmation of federal judges.

What Mr. Schumer and his liberal Democrat colleagues conceive as “mainstream” was epitomized by the same-sex “marriage” decree slabbed together last week by the Supreme Judicial Court of Massachusetts. No filibustering senator has deplored the unprecedented 4-3 ruling in Goodridge vs. Department of Public Health, and all would salute the decision as the North Star for the federal judiciary, a frightening prospect for the rule of law.

Writing for the majority, Chief Justice Margaret H. Marshall insisted that to confine marriage to one man and one woman arbitrarily transformed domestic partners into “second-class” citizens in violation of the Massachusetts state constitution. It guarantees equality before the law and the safeguarding of liberty without due process. The Massachusetts chief justice decried the legislative decision favoring child-rearing by a husband and wife through legal advantages as “irrational” and comparable to racist-inspired miscegenation laws held unconstitutional by the U.S. Supreme Court in Loving vs. Virginia in 1967.

She underscored that single persons and homosexual couples were eligible to adopt children under state law; and, that marriage was an option for heterosexual couples whether or not children were contemplated. In addition, Massachusetts offered no empirical evidence “that forbidding marriage to people of the same sex will increase the number of couples who enter opposite-sex marriages in order to have and raise children.” Accordingly, Chief Justice Marshall asserted, there is “no rational relationship between the marriage statute and the commonwealth’s proffered goal of protecting the ‘optimal’ child rearing unit. … In [denying same-sex “marriage”] the state’s action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.”

But in contrast to Loving, the state marriage law was unstained by either an oppressive purpose or effect targeted against homosexuals. The law also prohibits polygamous marriages because sub-optimal in promoting family harmony and cultivating democratic values of equality and otherwise. Incestuous marriages are likewise legally taboo to avoid excessive risks of defective offspring. Yet the chief justice wrote, “Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamous prohibitions of our marriage laws.”

Massachusetts laws treat homosexuals with dignity and respect. They are permitted to adopt children on a par with heterosexuals, and generally enjoy the same civil rights as are enjoyed by single persons. The chief justice’s description of the plaintiffs in Goodridge tends to disprove any subservience of homosexuals in Massachusetts: “The plaintiffs include business executives, lawyers, an investment banker, educators, therapists and a computer engineer. Many are active in church, community, and school groups.”

Furthermore, to indict the Massachusetts legislature as “irrational” in confining marriage to one woman and one man, as did the chief justice and three of her colleagues, is to indict all 50 states, Congress, the District of Columbia and most of Western civilization as equally irrational in prohibiting same-sex marriages. A more persuasive conclusion is that the 4-3 majority in Goodridge was blind to what common experience and intuition confirm. Children are most likely to flourish mentally, emotionally, and physically when born and raised by a husband and wife. Think of tumultuous and decisive adolescent years. Could a homosexual man discuss sexual maturation or dating rituals with a young girl as constructively and discreetly as could her mother? The same awkwardness or worse would arise if a gay woman sought to advise a teen-age boy about such vexing topics.

The chief justice also contradicted herself in disputing that prohibiting same-sex “marriages” encouraged opposite-sex marriages and procreation. She simultaneously emphasized that the “benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death.” Thus, the legislature might rationally assume that legal benefits facilitate opposite-sex marriage; and, that children customarily follow from such matrimony.

The Goodridge opinion was markedly unprincipled, an earmark of politics in lieu of judging. On the one hand, constitutional fault was found in the absence of hard proof that traditional marriage laws promoted procreation by a husband and wife. On the other hand, Chief Justice Marshall blithely sustained a ban on polygamous marriages without any documented proof of anti-social or mischievous effects distinguishable from traditional marriages. Similarly, she blessed a ban on incestuous marriages without proof that the danger of deformed offspring that would be created by such unions was greater than that raised by marriage partners sporting abnormal genetic traits.

Politics rather than law is afoot when a court, like the Goodridge majority, employs reasoning akin to a restricted railroad ticket, good for this day and train only. That politicization of the judiciary is what Mr. Schumer and his liberal Senate cohorts in filibustering would applaud.

Bruce Fein is a founding partner of Fein & Fein.

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