- The Washington Times - Monday, July 10, 2006

It has been a positive and eventful week for the defense of traditional marriage. First, the New York Court of Appeals deferred to state lawmakers to define marriage. Then, on the same day, the Georgia Supreme Court upheld that state’s constitutional amendment — passed in 2004 with 76 percent of voters in favor — to ban homosexual “marriage.” Now the Supreme Judicial Court of Massachusetts — which legalized it in 2004 — has declined to block a proposed constitutional amendment to overturn the ruling. In each case, the courts call on state lawmakers and voters to sort the problem out. This is a significant departure from what in 2004-2005 looked like an emerging trend of redefining marriage by judicial ruling.

Here’s a deferential Judge Robert Smith writing for the majority in New York: “[T]he Legislature could rationally decide that for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.” A clearer statement of judicial deference there could hardly be.

In the narrower Georgia ruling, judges rejected a technical challenge to that state’s constitutional amendment. Opponents had contended that the state’s “single-subject” rule does not allow a ban on both civil unions and homosexual “marriage,” which the amendment does, but Justice Robert Benham ruled that because the aim of both types of bans is “reserving marriage and its attendant benefits to unions of man and woman,” they are similar enough to be permissible. So much for that particular procedural challenge.

Now, in Massachusetts, a push to overrule the Supreme Judicial Court’s 2004 opinion with a constitutional amendment is set to begin. In a unanimous opinion, the court ruled that the fact that the proposed amendment would overrule its judgment should not by itself disqualify voters from considering and possibly approving a change to the state constitution. (Disturbing as it sounds, this rudiment of democracy was apparently under challenge.) From here, by state law, the amendment would need to be approved by 25 percent of lawmakers in two consecutive legislative sessions before it could appear on ballots in 2008 for an up-or-down vote.

None of this necessarily constitutes a trend of judicial deference on questions surrounding marriage. But it certainly flies in the face of what looked in the last year or two like an unprecedented wave of judicial activism. These rulings will force homosexual “marriage” advocates to make better efforts to convince large numbers of people — not just judges — of the rightness of their cause. In that respect this makes the debate more democratic than it previously had been — which so far is good news for traditional marriage and bad news for its opposite.

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