**I disagree! ** Vehemently!
What?
I think that all good, right thinking people in this country are sick and tired of being told that all good, right thinking people in this country are fed up with being told that all good, right thinking people in this country are fed up with being sick and tired. I’m certainly not, and I’m sick and tired of being told that I am.
That being said, several posters in here apparently need remedial lessons in the structure of the US checks and balances system.
Scott Plaid’s original post is fairly pathetic by Pit standards. But IMO he is 100% correct in his assertion, as I have been saying since Goodridge was originally handed down.
Let us examine the situation. By any reasonable definition, “judicial activism” consists in judges taking actions beyond the minimum necessary to resolve a case properly before them. Granted that some people, including those who should know better, allege that it is “creating rights” – their preference in nomenclature over “recognizing that all Americans are entitled to equal treatment before the law” – or even “a decision that goes against my personal prejudices” – it does have a definite meaning, antithetical to “judicial self-restraint” in the literature. And persons involved in debates on Constitutional law who have any knowledge of what they are talking about, are obliged to use the term in its proper meaning, not the gloss that they feel like placing on it.
So we have a same-sex couple applying for a marriage license. They are refused this license, on the basis that the particular part of the Massachusetts General Code (statute law) relating to the issuance of marriage license contemplates one adult male and one adult female, that particular combination and no other, being issued a license.
Recognizing that the Equal Protection clause of the Massachusetts State Constitution prohibits discrimination on a variety of grounds, including explicitly sex, they bring suit to compel the issuer of marriage licenses to issue them a marriage license. In the course of events, this case comes before the Supreme Judicial Court of the Commonwealth of Massachusetts.
It is therefore obliged to hear the case, and decide it upon its merits. I go through this exercise in the background facts because it seems like those engaged in flinging the term “judicial activism” against results they dislike seem to think that the honorable judges of a given court get up some morning and think, “Hey, it would be neat if we required all cops to read perps. their Miranda rights from now on. So let’s issue a ukase from the bench, out of the clear blue, mandating this.”
Judges decide cases validly brought before them. And, since 1803, there has been precedent in this country that, when a constitutional issue is raised, they are obliged to hear arguments that a given regulation or statute is contrary to a constitutional provision, and rule in accordance with the constitution and against the statute if those arguments convince them that such is the case. (Or at least I have never seen anyone proponing that Marbury v. Madison is lousy law, and any statute that gets 50%-plus-one of legislators voting for it is cast in stone, regardless of what constitutional provisions it may trample on.)
So the SJC hears the case, examines the statute and the constitutional clause, and finds that, lo and behold!, the arguments hold water. There is a contradiction between statute and constitution.
Now, it could be held that a court of judicial activists would therefore “create a right” – actually, recognize one – by finding in accordance with the constitution, and voiding the law as contrary to the constitution.
But the SJC did not do that. Instead, they propounded an opinion of their findings – that the statute and the constitution were at variance – wrote an order in accordance with that finding, and then stayed their decision for six months. They did this explicitly to enable the General Court (the legislature) to bring statute and constitution into agreement, by changing one or the other.
It must be noted that some critics of the decision observe that six months was not enough time to amend the State Constitution and have the amendment take effect. This is true.
I have no particular idea why the six months period was adopted. But I would assume that it is a standard period, enabling whoever must act to correct a fault half a year in order to do so.
And it does not presuppose the result. The General Court had three options at its disposal: (1) It could change the statute to correspond with the constitution, effectively legalizing gay marriage by statute. (2) It could begin the process of amending the constitution to allow the statute to stand. Granted that the amendment could not be passed within the six months, it would be an arrogant court indeed which refused the request of a coordinate branch of government for more time to complete the legal requirements associated with taking action in accordance with its decision. If the General Court chose this option, I have little doubt that the SJC would gladly have granted a continuation of its stay to permit it and the voters time to complete the amendment process. (3) They could do nothing for six months, allowing the stay to expire and the court decision to go into effect.
What actually happened, of course, was that the General Court – the legislature – chose Option #3. The Goodridge decision is therefore held up as “an egregious example of judicial activism.”
It is nothing of the sort. It is a decision in which the Supreme Judicial Court did its job – deciding a case with constitutional implications – in accordance with its reading of the Massachusetts State Constitution – ** and then deferred to the General Court – the legislature – on how to implement the results, or to make a change in the State Constitution that would obviate the decision. If this is “judicial activism,” then any decision anywhere by any court is judicial activism as well. It is a clear exercise in judicial self-restraint applied to a controversial case with implications for human rights and social structure. And I for one am thoroughly disgusted with those who are opposed to the results, or who claim to support them when decided by “legislative action as opposed to judicial fiat,” calling it “judicial activism.” Apparently the only thing that would suit them is the erection of judgeships among bipedal marsupials of Family Macropodidae.
You’re wasting your time, Poly. He’s had that explained to him, very patiently, many times, but still refuses to reconsider it. Even above legal process, he values RW talking points.
Doesn’t the source of your difficulty lie in your own failure, or perhaps refusal, to offer a real, workable definition of what this thing is that you so piously condemn, a definition you can support, with even one measly little example that can withstand the scrutiny of a few anonymous yobs on some message board? Your frustration is the product of your own refusal to reconsider your precious opinions. And you know what the unexamined life is worth, I hope.
If you’re gonna continue to bitch, you need to explain just what it is you’re bitching about, if you hope to be taken seriously that is. It isn’t up to anybody else to guess what you mean. Nobody cares about your opinion enough to even try, believe me.
So if you were to learn that the legislature acted as quickly as they could to pass an amendment to the state constitution, would you change your view of this case?
I don’t see why you think the SC would have granted more time had the legislature asked for it. The justices new exactly how long it takes to enact a constiutional amendment, and they clearly disallowed that possibility by placing a 6 month limit on the legislature. You and I have been over this a number of times, and this is where I see the activism-- not giving the legislature enough time and therefore FORCING only one solution.
But, the legislature didn’t ask for more time (actually, it was the AG who would have had to do that and he refused).
I’ve offered a definition before today.Here, for example – and this was a thread in which you participated. Did you forget it?
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.
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.
True. However, I was simply trying to prevent a hijack, as I have said before. One I could swear in. Still, I suppose I could have put it in GD instead.
Oh, and Btw, that you for steping in., and thank you ElvisL1ves as well.
Sure the legislature could have. They could have specifically amended the constitution to forbid same sex marriages.
I don’t know why I’m either bothering to explain this, but…
Scott: The procedure for amending the constitution in MA requires a vote in two consecutive legislative bodies (ie, two seperate years) and cannot physically be accomplished in 6 months, even if everyone in the state and every legislator wanted to do so.
Because I actually listen and reply to people? I will have to think this one over. My immediate response is that would allow a tyranny of the majority, which should not pass, but I will have to think more about this.
Please do. Under that philosophy, any law would be the tyranny of the majority. Not to mention that there is no law or constitutional amendment that forbids a tyranny of the majority, it’s just that our system is designed to avoid such as much as possible.
Seems to me, Massachusetts’ system of the legislature voting on an amendment in two separate sessions, then the voters chiming in, does avoid that as much as possible.
Well, you do a lot of replying, anyway.
The reason for that procedure in Massachusetts isn’t to grant a “tyranny of the majority.” It’s to prevent whimiscal and/or reactionary changes to the state’s Constitution. Constitutional changes should be slow, deliberate, and difficult to execute, because they represent a change in the foundation of the government and should never be undertaken lightly.
I have no idea what this means.
Over in another thread I was introduced to the De-Stupidizer. Running the post through that gives: Scott has a gut feeling that he doesn’t like the fact that Massachusetts can change their constitution, but he can’t articulate why, and has no evidence or defense anyway.
Thanks. I probably should have said I have no idea what it means, and hope I never acquire the ability to understand it. 
Personally, I think Scott does much better in his debates when he employs the “Argument by Proxy” strategy.