Wednesday, May 16, 2007

Massachusetts Judges Claim Judicial Infallibility

The lowly Worcester Telegram and Gazette carried an AP story that filled in the blanks left missing from the recent Boston Globe story concerning Martha Coakley’s speech to the Massachusetts Lesbian and Gay Bar Association (no double entendre intended). The Boston Globe story on Coakley’s speech did not include this point:

Coakley said that even though the Supreme Judicial Court ruled last July that the proposed amendment could be placed on the ballot if approved by the Legislature, at least two justices also questioned whether the amendment is constitutional.

She quoted a joint court opinion by Justices John Greaney and Roderick Ireland saying the 2003 SJC decision that legalized same-sex marriage “may be irreversible because of its holding that no rational basis exist, or can be advanced, to support the definition of marriage” as only between a man and a woman. The opinion also noted that the amendment would discriminate against same-sex couples by removing rights they already had been granted.

Fortunately the Court was not ruling ex cathedra at the time (pun intended).

Greaney and Ireland's remark has no small aroma of judicial arrogance, which may be why the Globe story did not attempt to explain the basis of Coakley's argument.

The actual 2006 SJC decision referred to is difficult to find. It concerned challenges to the right of petitioners to place the item on the ballot. SCOTUS blog has a link to an early released MS-Word version here, and a Globe story on the decision from July 2006 is here. The pith of this opinion:

…Put more directly, the Goodridge decision may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution. If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable...

You read that right.

The “no rational basis” argument is notable because in Goodridge the court did actually conclude that this was the case concerning legislation which “privileged” traditional marriage over its homosexual analog.

But the justice’s far more questionable observation is that they believe the Massachusetts Constitution cannot “be home to provisions that are apparently mutually inconsistent and irreconcilable”.

It would be the most remarkable creation in human history if it was not! I suspect, skeptically, there may be just a few such contradictory provisions in the document today.

The justice’s view requires that the present Constitution not only serve as the highest law of the Commonwealth, but as a fundamentally inerrant document – one than literally cannot contain internal contradictions. This is exactly the same view that fundamentalist Christians hold regarding the Scriptures.

But no worries, citizens! Christian fundamentalists must wrestle personally with the many apparent Biblical contradictions. But through a fortunate coincidence, these Massachusetts legal fundamentalists are competent (and empowered by their office) to discern and protect their inerrant document from any error that might be introduced – not only as a result of legislation, but by the processes prescribed in their (inerrant) Constitution itself.

A remarkable skill, that! These men should stand for election to Pope the next time there is a conclave.

2 comments:

Ramon enculait said...

You "suspect skeptically?" I know the cheerleaders who visit this blog will take you at yoyur word Harry but that is a bold claim. It would go a long way to undermining arguments against using the constitution for this trivial purpose, which would in fact create mutually contradictory elements. You're going to have to back that up. Do you think its okay to have such things in the Constitution, or do you think that, if they exist, should be modified or removed? If you think it is just fine then I can see why you would support using the Constitution to enshrine ephemeral social feeling, but you're making the Constitution a place to write law rather than the framework for lawmaking. A fundamental lack of respect for the traditional Western concept of a constitution's purpose. After all, you criticized the EU constitution for being bloated and rank with superfluity, and I can think of no better way to do this to the MA or American constituion than to do this.

The fact that they have resorted to constitutional ammendments shows that the Christianist crowd understands they have no winning legal argument. Instead they have to corrupt the constitution. Some respect for the founding fathers.

And i fin it odd that you are skeptically suspicious about anything being a Catholic. Their are a lot of glaring idiocies, in the face of which you are credulous of their truth, which you could subject to skeptical suspicion but do not.

Ramon enculait said...

It would go a long way ni that you would basically denty the importanc eof having any consistency in lawmaking and undermine any need to respect precedent or even to have a constitution which makes logical sense.