The Right View: Let the people vote on same-sex marriage, not judges

During the past year, the Chronicle has printed editorials and letters criticizing the people’s right to vote on same-sex marriage. Some have been reasonable. Others have been downright silly.

Writer David Ertischek in a recently published column in the Chronicle opined that citizens should not vote on same-sex marriage, because only judges make good decisions. He believes that Americans would never have granted women the vote. (Apparently he is unaware of the Nineteenth Amendment to the U.S. Constitution, approved by the requisite thirty-six states in 1920, which extended voting rights to women.) Therefore, it is up to judges, “chosen due to their intelligence and ability to interpret laws” to ensure that we have a just society.

Massachusetts has same-sex marriage because four members of the Supreme Judicial Court (the “SJC”) decided that we should. In Goodridge v. Dep’t of Public Health (2003), a bare majority of the SJC ruled that the Massachusetts Constitution mandates same-sex marriage. (John Adams, author of the Massachusetts Constitution and a singularly devout man, must have rolled in his grave.) The three remaining justices denounced the decision as an infringement on the power of the legislature to decide questions related to marriage.

The Goodridge court may have handed the 2004 presidential election to George W. Bush. Americans were so shocked by this blatant power-grab that they elected the man least likely to foist similarly arrogant judges on the rest of the country.

The SJC seems to have recognized that it went too far. In March 2006 it ruled that Massachusetts cannot marry citizens of other states where the home state forbids the marriage. In July 2006 the SJC unanimously ruled that citizens still have the right to amend the constitution, even if the amendment counter-acts the SJC. On December 27, 2006, the SJC again unanimously ruled that Massachusetts legislators had a constitutional duty to vote on the marriage amendment, even though the SJC could not force them to do so. (The cynic in me wonders why forcing one legislative vote was problematic when rewriting 6,000 years of marriage law gave them so little pause.)

Those who support judicial lawmaking (also known as judicial activism) demonstrate a dangerous ignorance of both history and the principles of democracy. Judges are human, and they sometimes make bad decisions.

In 1857, the United States Supreme Court ruled in the infamous case of Dred Scott v. Sanford. Chief Justice Roger B. Taney supported both slavery and the South. He wrote that no black, even a free one, could ever become a citizen of the United States. He further declared that the 1820 Missouri Compromise (which prohibited slavery in the northern territories of the Louisiana Purchase) was unconstitutional. The people responded with the Thirteenth and Fourteenth Amendments, prohibiting slavery and ensuring equal citizenship for all men.

In Kelo v. New London (June 2005), five justices (another bare majority) ruled that a state may seize private property for the benefit of private developers. In other words, if big business can pay more taxes than you, you will lose your home. In the year following this decision, 5,783 homes, businesses, and churches came under threat. Up to 95 percent of Americans oppose the Kelo decision. Republicans hate it because it threatens property rights, the basis of many of our freedoms. Democrats hate it, because Kelo’s victims are predominantly ethnic minorities and the working class.

Rule of the masses by an unelected, elite group is called an oligarchy. Citizens of Massachusetts launched the Revolutionary War precisely because they had no vote. The SJC and similarly activist courts behave like oligarchies when they over-reach their power. Our only recourse against them is the ballot box.

Winston Churchill once said: “No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.”

Marriage is and always has been a political question, not a judicial one. The citizens of Massachusetts will approve or disapprove same-sex marriage, whether through our elected representatives or through a direct referendum. The more important issue is that each one of us has the right to do so as citizens of a democratic republic. Let the people vote!

Elizabeth Harmer-Dionne is a resident of Hancock Park and a member of the Ward 6 Cambridge Republican City Committee.

The Right View is a bimonthly column written by a member of the Cambridge Republican City Committee.