# The Mass. Goodridge decision was not judical activism. **URL:** \ **Category:** The BBQ Pit\ **Created:** [September 6, 2005, 4:48pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360 "2005-09-06T16:48:07Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 10:49pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/61 "2005-09-07T22:49:25Z")
> [@Scott Plaid](#): > > Sheyeahright. They could have gave them two weeks, or two years. There is no way they could have come up with a “constitutionally adequate reason” within six months, or six years. No one has, ever since this whole hooplah started. They will not now. Well, both Alaska and Hawaii’s supreme courts reached similar conclusions regarding their respective state constitutions: that the state constitutions’ equal protection clauses mandated recognition of same-sex marriage. Subsequently, both states then passed amendments to their state constitutions explicitly forbidding same-sex marriage. Is that a “constitutionally adequate reason” ? ---
**Author:** ![Grelby](https://avatars.discourse-cdn.com/v4/letter/g/a5b964/32.png) [@Grelby](https://boards.straightdope.com/u/Grelby)\ **Post date:** [September 7, 2005, 10:52pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/62 "2005-09-07T22:52:22Z")
> [@Bricker](#): > > BWAHAHAHAHA!! > > **Scott** , the quote by **Grelby** and his use of the word “legislature” refers to CALIFORNIA’S legislature. It is not in any way a comment upon “activist” or any other word as applied to the Massachusetts situation. :dubious: Would you kindly not put words into my mouth? I was _explicitly_ referring to criticisms of the Massachusetts decision calling it judicial activism and arguing that, since the legislature did not (and, to be fair, did not have time to) enact a law, the decision was not the “will of the people.” I was noting that the _exact same criticism_ (not the will of the people) was leveled at the California legislature. Are these people aware that there is not some kind of statute of limitations on public referenda? Proposition 22 did not say “FOREVER AND HENCEFORTH NO MATTER WHAT THE LEGISLATURE DECIDE IN THE FUTURE.” Are these opponents seriously suggesting a public referendum on every single policy decision? No? Well then. My point was that these arguments are disingenuous and seek to mislead the public, when the main thrust of their argument is really “we don’t like hot buttsex.” As for **Scott Plaid** ’s use of my post, I am somewhat flattered in that he thought my post was a reasonable representation of his point of view, but mostly irked to see him using my post in lieu of an actual argument of his own. Further, I totally fail to see how my point about the hypocrisy of certain arguments against SSM laws is at all germane to whether or not _Goodrich_ was or was not judicial activism. I did not address that point with my post! Since it’s not relevant, why quote it? Since I’m here, though, I will say that I do not consider the actions of the SJC to be judicial activism, though I will concede that the line is a bit blurry on this case, due to the relatively short waiting period. Six months would appear to be a fairly standard waiting period. Even extending the period by six months would not be enough time for the legislature to act. Frankly, a waiting period the length of the required two and half years or so from the decision that would have been necessary to go through the amendment process seems to me to be beyond “fair” and well into “excessive,” when we’re talking about a breach of constitutional protections. And IANAL, but it seems quite clear to me that **Polycarp** (great post, BTW) is completely correct, at the very least on a technical level. Whether or not they saw the six-month waiting period as an advantage to their particular idealogical perspective, they followed appropriate procedure in a way that was consistent with and respectful of standard judicial practice in Massachusetts and in the United States. Further, I think that allowing the six-month period has been extremely beneficial in sidelining hysteria. Given a waiting period long enough to draw up and refer to the public a constitutional amendment (at least two years), there would have been ample opportunity to whip the public into a hysterical frenzy over the gay menace. With over a year to get used to “business as usual,” things here in MA are pretty relaxed about it - everyone’s gotten used to it, and frankly, almost no one really cares. It’s barely on the political radar at all (though it will be rising to the surface again before too long). **Bricker** , you will claim that this has no bearing whatsoever on whether or not the decision constituted judicial activism, and you’ll be right. **However:** in a broader sense, the way the decision was handed down has allowed the question to be handled in a remarkably measured and restrained way by both the legislature and the public. There was certainly some hysteria in the state and on Beacon Hill, but on the grand scale of things, it’s all been very smooth. I’d say that that’s a valuable contribution, and a good job by the MA SJC. ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 7, 2005, 10:55pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/63 "2005-09-07T22:55:22Z")
No, then it becomes part of the constitution. That doesn’t make the document as internally consistent as before, though, and that will lead to such things being torn out. However, the fact is the reason for the laws were not they served any state interest, or found any backing or reason in the old constitution, but simply because the preferences of a bunch of bigots and know-nothings. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [September 7, 2005, 10:57pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/64 "2005-09-07T22:57:50Z")
> [@Bricker](#): > > And I’d point out as well that the legislature has no standing to request the SJC to take any action at all in a given case. > > Your argument fails on this very point: if the SJC were truly interested in letting the legislature fix the problem, they would have stayed their decision for two years – or, they could have retained jurisdiction and when the legislature took the first step they possibly could, WHICH THEY DID, then the SJC could have extended the stay. > > They did not. Ah. It is “speedy justice” when a court decides that a remedy it feels proper to grant is to be withheld long enough that the **radical conservative** outcome can be put in place? Try a parallel. Your city takes your three-generation-old family homestead, in compliance with zoning and building codes and with all taxes current, to give to WalMart as part of their new Super WalMart with parking lot, orders you out by September 15, and offers you $10,000 for the property. You comply with the eviction but institute suit in Federal court as a violation of the eminent domain law. The district court issues a temporary injunction pending decision and appeals. It finds for you, the Circuit Court of Appeals concurs, and the City takes it to the Supreme Court. And the Court finds unanimously in your favor, that the city has not complied with proper eminent domain procedures … but they vacate the temporary injunction and stay their order for seven years, in case Congress and the state legislatures decide to amend the Constitution to permit the City to act. Meanwhile the city can demolish your house and pave your yard for a parking lot … but if the amendment is not adopted and ratified, then they will have to pay you whatever fair market value may be for the property. This is precisely what Messrs. Mace and Bricker are suggesting is proper court procedure. If the couple were **not** entitled to the relief requested, it would be the simplest thing in the world for the court to deny it. As the SJC, topmost court as regards non-Federal-question Massachusetts law, saw it, they **were** entitled to that relief, by a guarantee of the Massachusetts state constitution. In other words, Rick, only the outcome that pleases you is good legal practice. And, though I have twice came to your defense since your “conversion” thread, I beg to submit that you are **very clearly** showing your true stripes. I call bullshit on your “if the legislature approves of gay marriage, I’ll support it” claim. You can **say** it all you like; your posts make clear where you **really** stand. ---
**Author:** ![Grelby](https://avatars.discourse-cdn.com/v4/letter/g/a5b964/32.png) [@Grelby](https://boards.straightdope.com/u/Grelby)\ **Post date:** [September 7, 2005, 10:59pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/65 "2005-09-07T22:59:56Z")
> [@Grelby](#): > > \ > My point was that these arguments are disingenuous and seek to mislead the public, when the **main thrust** of their argument is really “we don’t like hot buttsex.” > \ Huhuhuhuh. He said “thrust,” huhuhu. :smack: ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 7, 2005, 11:05pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/66 "2005-09-07T23:05:44Z")
> [@Grelby](#): > > Further, I totally fail to see how my point about the hypocrisy of certain arguments against SSM laws is at all germane to whether or not _Goodrich_ was or was not judicial activism Because I had to get going somewhere else just then, and could not elaborate and also the hypocrisy of that certain argument you are addressing pretty much is the bulk of the “Mass. Ruling was judicial activism” crowd. Oh, and it is pretty 🆒 to see you here. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 11:06pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/67 "2005-09-07T23:06:54Z")
> [@Polycarp](#): > > In other words, Rick, only the outcome that pleases you is good legal practice. And, though I have twice came to your defense since your “conversion” thread, I beg to submit that you are **very clearly** showing your true stripes. I call bullshit on your “if the legislature approves of gay marriage, I’ll support it” claim. You can **say** it all you like; your posts make clear where you **really** stand. And [this](http://boards.straightdope.com/sdmb/showthread.php?t=333031)? ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [September 7, 2005, 11:07pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/68 "2005-09-07T23:07:57Z")
> [@Scott Plaid](#): > > No, then it becomes part of the constitution. That doesn’t make the document as internally consistent as before, though, and that will lead to such things being torn out. However, the fact is the reason for the laws were not they served any state interest, or found any backing or reason in the old constitution, but simply because the preferences of a bunch of bigots and know-nothings. Could you say that another way? That’s not really doing it for me. What are “such things?” What does “torn out” mean. Who are the “bigots” and “know-nothings?” Thanks. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 11:08pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/69 "2005-09-07T23:08:08Z")
> [@Bricker](#): > > And [this](http://boards.straightdope.com/sdmb/showthread.php?t=333031)? Err… I mean, “and [this](http://boards.straightdope.com/sdmb/showthread.php?t=333031)?” ---
**Author:** ![Contrapuntal](https://avatars.discourse-cdn.com/v4/letter/c/e274bd/32.png) [@Contrapuntal](https://boards.straightdope.com/u/Contrapuntal)\ **Post date:** [September 7, 2005, 11:11pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/70 "2005-09-07T23:11:30Z")
What the hell? ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 7, 2005, 11:14pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/71 "2005-09-07T23:14:47Z")
> [@Contrapuntal](#): > > Could you say that another way? That’s not really doing it for me. What are “such things?” What does “torn out” mean. Who are the “bigots” and “know-nothings?” Thanks. [/QUOTE] Ok, then, [del]I’ll [/del] **Polycarp** will restate what I meant by this. > [@](#): > > It is “speedy justice” when a court decides that a remedy it feels proper to grant is to be withheld long enough that the radical conservative outcome can be put in place? > [@Contrapuntal](#): > > What the hell? _(&&^(_(RicK haz brokan teh009 intehweb._(&_(\*()& 🙂 ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [September 7, 2005, 11:20pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/72 "2005-09-07T23:20:08Z")
> [@Bricker](#): > > Well, both Alaska and Hawaii’s supreme courts reached similar conclusions regarding their respective state constitutions: that the state constitutions’ equal protection clauses mandated recognition of same-sex marriage. IIRC, the Alaska case only got as far as the trial court’s rendering a decision before the anti-family amendment was passed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 11:20pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/73 "2005-09-07T23:20:59Z")
> [@Polycarp](#): > > Ah. It is “speedy justice” when a court decides that a remedy it feels proper to grant is to be withheld long enough that the **radical conservative** outcome can be put in place? No - merely the minimum time for any possible reaction. You offered the scenario as evidence that the court gave the legislature a chance to act. But that was not true: the legislature could NOT have acted in the timeframe the court gave. > [@](#): > > Try a parallel. Your city takes your three-generation-old family homestead, in compliance with zoning and building codes and with all taxes current, to give to WalMart as part of their new Super WalMart with parking lot, orders you out by September 15, and offers you $10,000 for the property. You comply with the eviction but institute suit in Federal court as a violation of the eminent domain law. The district court issues a temporary injunction pending decision and appeals. It finds for you, the Circuit Court of Appeals concurs, and the City takes it to the Supreme Court. And the Court finds unanimously in your favor, that the city has not complied with proper eminent domain procedures … but they vacate the temporary injunction and stay their order for seven years, in case Congress and the state legislatures decide to amend the Constitution to permit the City to act. Meanwhile the city can demolish your house and pave your yard for a parking lot … but if the amendment is not adopted and ratified, then they will have to pay you whatever fair market value may be for the property. What’s wrong with that analogy? The eminent domain law is a creature of the state, not the Constitution. Seven years has no relation to the time needed for the legislature to change the law on eminent domain to cure whatever defect the court identified. This is precisely what Messrs. Mace and Bricker are suggesting is proper court procedure. > [@](#): > > If the couple were **not** entitled to the relief requested, it would be the simplest thing in the world for the court to deny it. As the SJC, topmost court as regards non-Federal-question Massachusetts law, saw it, they **were** entitled to that relief, by a guarantee of the Massachusetts state constitution. Yes, I acknowledge that. But they were also aware that new realization that the MA constitution had that guarantee was a sharp departure from previous practice. Such sharp departure should come from the legislature, not the courts. > [@](#): > > In other words, Rick, only the outcome that pleases you is good legal practice. And, though I have twice came to your defense since your “conversion” thread, I beg to submit that you are **very clearly** showing your true stripes. I call bullshit on your “if the legislature approves of gay marriage, I’ll support it” claim. You can **say** it all you like; your posts make clear where you **really** stand. Not at all. In fact, this thread was spawned from an earlier thread I started, praising the California legislature for doing the right thing in approving SSM. I pointed out how they were doing it without any pressure from the courts, and how THAT was self-governance in action. How does that fit your theory? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 11:26pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/74 "2005-09-07T23:26:42Z")
> [@Bricker](#): > > How does that fit your theory? In fact, in that earlier thread, I even defended the state legislature against the claim that they acted improperly by disregarding an earlier referendum. According to your view, I should have been on the other side of that argument: I had a colorable claim that the legislature was not following the will of the people, and it would have allowed me to pursue my stealth campaign against same-sex marriage. Or… Could it be that I support same-sex marriage, when it comes about as a creation of the legislature, just like I’ve been saying, and resent it when it comes about as a result of the judiciary, just like I’ve been saying? ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 7, 2005, 11:39pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/75 "2005-09-07T23:39:59Z")
> [@Bricker](#): > > Err… I mean, “and [this](http://boards.straightdope.com/sdmb/showthread.php?t=333031)?” Giraffe has fixed the link. However, that still doesn’t explain why everything below the old link looked all screwy, until a few minutes ago. **Giraffe** , any interest in telling us why that happened? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 7, 2005, 11:46pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/76 "2005-09-07T23:46:27Z")
> [@Scott Plaid](#): > > Giraffe has fixed the link. However, that still doesn’t explain why everything below the old link looked all screwy, until a few minutes ago. **Giraffe** , any interest in telling us why that happened? Eddies in the space-time continuum. And that was his sofa. ---
**Author:** ![Giraffe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giraffe/32/129_2.png) [@Giraffe](https://boards.straightdope.com/u/Giraffe)\ **Post date:** [September 8, 2005, 12:38am UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/77 "2005-09-08T00:38:23Z")
> [@Scott Plaid](#): > > Giraffe has fixed the link. However, that still doesn’t explain why everything below the old link looked all screwy, until a few minutes ago. **Giraffe** , any interest in telling us why that happened? Beats me. Must have been a glitch in the Matrix. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [September 8, 2005, 3:52am UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/78 "2005-09-08T03:52:28Z")
Quick poll, which was more pathetic, **Bricker** ’s Hitchhiker’s Guide reference or **Giraffe** ’s Matrix line? ---
**Author:** ![Uvula\_Donor](https://avatars.discourse-cdn.com/v4/letter/u/e19adc/32.png) [@Uvula\_Donor](https://boards.straightdope.com/u/Uvula_Donor)\ **Post date:** [September 8, 2005, 4:02am UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/79 "2005-09-08T04:02:02Z")
Yes. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [September 8, 2005, 12:36pm UTC](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360/80 "2005-09-08T12:36:05Z")
> [@Bricker](#): > > I’ve offered a definition before today.[Here](http://boards.straightdope.com/sdmb/showpost.php?p=6119693&postcount=27), for example – and this was a thread in which you participated. Did you forget it? Less than you have. You tried to offer one, couldn’t come up with an example, couldn’t defend it even in theory, and still can’t reconsider. Pity. Typical of you, but still a pity. Justice delayed is justice denied. To most of us anyway, but not to you. [Previous page](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360.md?page=3) [Next page](https://boards.straightdope.com/t/the-mass-goodridge-decision-was-not-judical-activism/320360.md?page=5)