Saturday, February 7, 2004

So, in redefining marriage to mean something brand new, why didn’t the Massachusetts Supreme Judicial Court say prohibiting brothers and sisters from marrying would “have the effect of maintaining and fostering a stigma of exclusion?” Or parent and child?

If you are going to change an ages-old meaning of an institution, why not also mandate that a legislature allow polygamy?

Strictly speaking, of course, the law has never said homosexuals were prohibited from marriage as marriage has mostly been understood in law, literature, song, philosophical discourse and the public mind in all parts of this globe: the union of a man and woman who are not in the same immediate family. There have been exceptions to that understanding — polygamy has been the way of things in different times and places — but no exception yet discovered in the long and varied history of humanity in which men were legally married to men or women married to women.

But of course, if the court were intellectually honest or abiding by any criteria binding it to reasonable interpretations of the state constitution or law, it could not simply mandate that the legislature do its bidding on this matter. It had to pretend marriage is something marriage is not and then tell the legislature it must itself redefine marriage to achieve equality under law.

If the legislature decided on its own to do as much, it legitimately could. Nothing in the law or the state or federal constitution would prohibit it from opening the doors to same-sex marriage. But it is not a legitimate function of the state’s highest court to impose its moral druthers on the legislature without constitutional warrant. It has now done so twice — in a ruling that said it was unconstitutional not to afford homosexuals the possibility of unions comparable to marriage, and a follow-up ruling that allowing civil unions is not enough, that the word “marriage” is imperative in the law.

It’s certainly possible to make a case for laws sanctioning same-sex unions, but it is preposterous to argue the court had the right to do what it did. These judges — and any number of other judges in state and federal courts throughout the land — are bringing this country to the edge of a constitutional crisis because of their seeming belief they were appointed or elected to be philosopher kings.

Jay Ambrose is chief editorial writer for Scripps Howard News Service.

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