Judicial tyranny in Massachusetts

Printer-friendly versionSend to friendLeaders of "enlightened" opinion like to see themselves as the vanguard, forging ahead and waiting for the benighted public to catch up. But there are two problems with judges taking on the role of opinion leaders, as the Massachusetts Supreme Court did last week. One problem is legal and one is social. By a vote of 4 to 3, the court declared in strong terms that homosexual "marriage" was a right inherent in the Massachusetts state constitution, although it was there unnoticed for the previous 223 years. Until the present generation, judges had traditionally seen themselves as conservators or interpreters of a legal tradition. This kind of "conservatism" had little to do with political ideology in the Republican vs. Democrat sense and much to do with simple judicial humility. The burden of proof was on new legal precedents and doctrines, and law rested on and deferred to precedent. That humility evaporated precipitously with Roe vs. Wade, the case that struck down laws prohibiting abortion, and is virtually gone now. The Roe court claimed to find a privacy right unmentioned in the Constitution in its "penumbra." But if the claim of the Massachusetts Supreme Court to find homosexual "marriage" rights in the Massachusetts constitution is allowed to stand, then any judge can find anything in any constitution. Constitutions will cease to mean anything, except as fig leaves to justify arbitrary judicial rule. Apart from making nonsense of legal restraint, forging ahead of the public can lead to bitter divisiveness. The example of abortion is instructive. Thirty years after Roe vs. Wade was supposed to settle the issue of legal abortion, can anyone claim it’s settled? It has contributed to the deepest tensions in our society since slavery. Those tensions might still have existed had abortion rights been granted by Congress or state legislatures, but they would have been channeled into democratic politics. Catholics may object, with others, to the way that unelected and unaccountable judges have raced ahead of the public on this issue, as with abortion in Roe. But the Catholic objection to abortion or homosexual "marriage" is not primarily procedural. We believe that some acts should be forever beyond the reach of courts, legislatures and voters alike. Courts and legislatures serve the moral law; they do not create it. Abortion and homosexual unions would be no more right or moral were they enacted by Congress rather than imposed by judicial fiat. Arbitrary rule comes about when the institutions of government cease to believe that they serve any higher law and act as if they alone create and manipulate that law. It matters little whether the court, legislature, or presidency exercises the tyranny. Nor would approval by voters make wrong right. One of the concurring opinions contains language that religious believers can only find chilling. "I am hopeful," writes Justice John M. Greaney, "that our decision will be accepted by those thoughtful citizens who believe that same-sex unions should not be approved by the state. I am not referring here to acceptance in the sense of grudging acknowledgment of the court’s authority to adjudicate the matter. My hope is more liberating. ... Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do." This language is a direct challenge by the government of Massachusetts to religious believers. It is not simply a plea to accept homosexual persons as having dignity but a demand that we accept homosexual unions. It is a not-so-lightly veiled threat that must be taken seriously by believers and by any and all who believe that there is a higher law than the will of the state. In a recent statement, the U.S. bishops declared: "Marriage, whose nature and purpose are established by God, can only be the union of a man and a woman and must remain such in law." The idea of homosexual "marriage" violates something basic about human existence as such — the very reason for the creation of human beings as two sexes. The entire theology of the Catholic Church is so closely bound up with its understanding of marriage that it can never acquiesce in such decisions or fail to see them as an attack on the dignity of marriage and of human identity itself. But you don’t have to be Catholic, or even Christian, to appreciate that these recent decisions do not propose any "alternative vision" of marriage. Instead, they take society further into a moral wilderness. This is indeed a time of testing for our democratic institutions, and our Church.

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