Gay Marriage and Usurpation of Power

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I continue to be annoyed that there is more legislation from the bench than from the legislature. And yet, if the legislature acts to overturn this judicial fiat (as in Terri Schiavo's case) we are somehow tampering with the (almost entirely imaginary*) balance of powers. What "balance" is there to unrestrained judicial fiat? Or, in other words, when do we get our democracy back.

(By the way, I don't know where I stand with respect to the issue at hand in a civil context. I think it's bad law to declare what is morally wrong to be legally right. On the other hand, I don't get as het up about this issue as some.)

*For those unaware--John Marshall invented the "right" of judicial review almost out of whole cloth in the famous Marbury v. Madison case. He decided single-handedly to change what the framers of the Contstitution had set in place (with woeful results down to the present day) and made possible the judicial usurpation of both legislative and executive branches.

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The bad news never seems to end, does it? At least when it comes to our judicial branch.

Putting aside the debate about the morality of gay marriage, I think actually that the court did exactly what it was supposed to do in this case and did not over step its bounds. It was asked to interpret the Constitution of Massachusetts by some citizens and it did. It did not mandate that licenses be given out immediately and sent the issue back to the legislature to figure out how to proceed. Not agreeing with the decision doesn't mean the court overstepped its bounds.

Dear Denise,

Where they overstepped their bounds (and make no mistake about it, they DID overstep their bounds) was not in the interpretation of the constitution, but in the conclusion that a constitution that makes even less mention of homosexuality than does the Bible in any way endoreses the legitimacy of "gay marriage." In sum they stated that the legislature COULD NOT make a law that banned gay marriage--this is a gross overstepping of bounds. We'll just have to disagree here. In point of fact, I don't know if I do disagree with the decision, curiously. I find the end result in some ways repugnant, but in others a necessary remedy to some injustices that may be associated with same-sex relationships. So, I stand almost diametrically opposed to your stand here. Curiouser and curiouser.




Curious indeed! I actually support same-sex marriage as well, but I abhor most people on both sides' inability to discuss it on a raitonal level which is why I enjoy reading your blog.

You're right- we will have to agree to disagree about the court issue. Courts have weighed in on various issues of marriage for some time now and in some cases, (such as in the case of interracial marriage) over riding public opinion. If Massachusetts want to pass a constiutional amendment defining marriage as one man, one woman, they still have the option to (in 2006 at the earliest), but I don't think there will be enough support because according to polls, most people in Massachusetts favor extending marriage to same sex couples.

Since this was brought to court about as a question whether an existing law was being applied fairly to all citizens, it was right for the courts to decide.

You're absolutely right that existing marriage laws do not make any specific reference to sexual orientation, but they do not for any other identity as well, and we still understand that these laws apply to all Massachusetts citizens. It strikes me that one could have similarly argued that interracial marriage could not be included in existing marriage laws because race was not specifically mentioned in pre-existing laws. The courts were asked to step in there as well and went against public opinion and decided justly.

The court was asked to clarify if there was a valid reason for the discrimination and found that there was not. So it send the issue back to the legislature to rectify. It seems pretty straightforward.

Anyway, thanks for your terrific blog and taking the time to respond to my questions. I will keep reading!


Dear Denise,

I think additionally, the whole question of judicial review is something that requires a great deal of review. This is a very, very difficult issue (judicial review) that really effectively eliminates any sense of checks and balances because the judciary holds all the trumps. If there's something they like or don't like, they can push it through.

For example, the whole challenge to the partial birth abortion bill. Even Roe v. Wade recognized the right of government to regulate second and third trimester abortions, but effectively the ruling was read to mean that no restriction of any meaningful sort could be placed on abortion.

I don't know fully what the implications of the Massachusetts law may be. Some say that it will force other states to recognize the "married" state of gays. I'm not certain that is true, because a great many states have already passed laws defining marriage.

I'm undecided about how I feel about this issue. I do think that there is a certain injustice in that some domestic partners can not get benefits, etc. On the other hand, I need to heed closely what the Church has to say on the matter and what reasoned theology tells us. I'm too uniformed to understand clearly what it may mean for the future. So, for the time being, I am more annoyed by court action than I am concerned about the nature of the case over which it was taken. There may be good cause for concern--I'm certain others will make that more clear as time goes on. For the time being, I'm willing to hear arguments on both sides.



I think that cases like Roe and the MA one are clearly instances of judicial usurpation - but I don't think Marshall in Marbury is to blame. There is textual and historical warrant for "judicial review" in the sense of preferring higher (constitutional) to lower (statutory) law in making decisions about cases. For a defense of Marbury - both the understanding of "judicial review" therein, and its specific interpretation of the constitutional provision at issue - COUPLED with a critique of modern "judicial review" as ungrounded in actual constitutional law - see Wolfe, The Rise of Modern Judicial Review. I think Wolfe is right both about Marbury and about the modern mess.

Dear Mr. Miller,

I'm in a curious place here with regard to Marshall. One may well defend what he did, and I actually find good reason in what he did; however, it was not the "system of checks and balances" that we were taught in school that was built into the Constitution. No matter how worthy the goal, it stemmed from an initial usurpation and in human-run institutions (witness the Anglican Communion) an initial deflection in the wrong direction compounds.

Marshall probably didn't foresee all of the consequences of the action; however, the ramifications are far larger than the original act, no matter how qualified and justified.

(And judicial review, when it is indeed review, is a very fine and necessary thing. The 1831 decision in favor of the Cherokee nation (which went uninforced by Andrew Jackson) was a very fine and worthy decision. )

So, I'm just in a very peculiar place recognizing both the necessity and the concommittant evil of the process of review--the potential for usurpation which in past years has been exploited almost beyond recognition.



Marshall didn't actually invent the concept. It existed in limited ways in common law, and as I recall Marshall was a lawyer in a case before the Virginia Supreme Court (or whatever name it went by in those days) where the principal was first applied explicitly on American soil. I'm fundamentally okay with it and with his reasoning for it: I don't think much modern judicial review abides by the measured restrained way in which Marshall sought to utilize it. After all, if a court cannot declare a law to violate the constitution, then the courts have absolutely no power to balance or check the legislature. But this nonsense of the SJC in Massachusetts telling the Legislature to write a new law within 180 days is constitutionally abonimable, and I rather suspect that a certiorari grant would stop it. The Court may declare that the law as written violates the constitution (though I disagree with that rather liberal interpretation of what the state constitution says), but it is only in the past few years (since NJ's Supremes ordered the legislature to impose a tax to pay for schools in the late 1980s) that the Imperial Judiciary has sought to tell the lawmakers how to fix the problem.

But legislatures too are to blame. They have so accomodated themselves to judicial review (as opposed to viewing it with horror as they did Marbury v. Madison) that they now write nonsensical laws to brag about, knowing--hoping and even praying--that the courts will bail them out. McCain-Feingold being the exemplar par excellence of such cases.

May I recommend Jean Smith's "John Marshall: Definer of a Nation"? Best political bio I have ever read.


Dear Denise,

In fact, we the people of Massachusetts do *not* have the option to vote on such an amendment, because the Senate president has used procedural trick after procedural trick to keep such an amendment from coming before the voters. Since we also lack a viable Republican party, we are forced to live under the sort of one-party system that makes democracy something of a memory. You may suppose I am exaggerating, but I assure I am not. I do not belong to either party, but nearly every race is decided in the Democratic primary, and Republicans (excepting only the moderately Republican candidates for governor, who find the present situation desirable, because it allows them to run against the system without having to accomplish very much once in office) have so few seats in the House and Senate as to barely be able to caucus.

If such an amendment failed, I would be satisfied, but I am angry beyond belief that I am having this decision forced on me by an unelected court and a single senator. That should be abhorrent to all people who love democracy, whether or no they support gay marriage.




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This page contains a single entry by Steven Riddle published on November 18, 2003 10:42 AM.

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