Activist Judges

Things aren't looking good for the radical right and fundamentalist Christianists on the gay marriage front. It's been two months since gay couples started getting legally married in Massachusetts, and somehow God hasn't sent down fire and brimstone (maybe He has more important things on His plate). Civilization has not collapsed. Yesterday's humiliating defeat of the Federal marriage Amendment shows how out-of-touch these people are.

But hate and fear spring eternal, and now they're going after "activist judges" (link). The new mantra is "activist judges should not be allowed to write laws, like they did in Massachusetts. The legislature should write the laws."

Hey, folks, quit beating up on the Massachusetts Supreme Judicial Court (MSJC), okay?

The MSJC did everything in their power to let the legislature write the laws. The legislature just didn't co-operate.

Here's what the MSJC said, paraphrased by the Ivory Madonna: "Hey, Legislature! You know, we've got a bad situation here. Our marriage laws are in conflict with our Constitution. We'd like to point this out to you, so you can do something about it.

"So here's the deal: we won't do anything immediately. We'll give you six months to write laws to eliminate this conflict. Maybe you could take a look at existing marriage laws, re-examine the whole concept of marriage and what it means? The field is wide open, you can make any laws you wish, as long as they're consistent with the Constitution. Please take advantage of this period, and write some good laws. That's your job, not ours. That's what you were elected for.

"Really, guys, we're serious here: Please give us some laws that are consistent with the Constitution. Because if you don't, we'll do what the Constitution says, and give everybody equal treatment under the law. But we're confident it won't come to that, becuase you Legislature guys are just as serious about your responsibilities as we are, and we know you'll do your job."

The Legislature pissed away several months doing nothing but bitching and complaining. After a while, they said, "Hey, MSJC, we know you said the Constitution requires 'equal treatment,' but we figured 'unequal treatment' would be fine instead. Is that okay?"

At which point the MSJC said, "Uh, guys? 'Equal treatment' means 'equal treatment.' That's what it says, in black and white. Don't you think you should get busy writing some laws? You've only got a month or so. Please, please, don't put us in the position of having to act because you didn't do your job."

At the last possible minute, having piddled away six whole months, the Legislature decided to begin the process of changing the State Constitution.

The six month deadline came, and the Legislature had not changed State marriage laws by so much as a single comma. So the MSJC did what they said they would, and ordered that existing laws should be administered so that everyone gets equal treatment, the way the Constitution says.

Suddenly, everyone started screaming at the MSJC, for doing exactly what it said it would do if the Legislature didn't do its job.

The Massachusetts Legislature had the opportunity to take a hard look at the whole concept of marriage, to have the difficult discussions and come up with a way to balance religious beliefs, social justice, and equality. They could have taken a leaf from the French, and set up an institution of "civil union" for all citizens, leaving "marriage" to the churches alone. They could have scrapped "marriage" entirely, and created brand new institutions that would fit the 21st century and not conflict with tradition. They could have done anything. Instead, in the words of John Adams in 1776, they "piddled, twiddled, and resolved."

"Activist judges," phooey. What we need are activist lawmakers who will do their job and write laws to correct injustices, rather than pissing away the time they have in futile bitching and moaning.

M.

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The Ivory Madonna's story is told in Dance for the Ivory Madonna by Don Sakers.