In a Washington Post Op-Ed piece, Senators Orrin Hatch (R-Utah) and Jim Talent (R-Mo.) echoed the feelings of many who oppose gay marriage. Published last Monday - the same day such unions became legal in Massachusetts - the pair expressed outrage at the "activist judges" on the Supreme Judicial Court (SJC) who "legislate from the bench" in defiance of the will of the people.
While reasonable people can disagree about gay marriage, the senators' views on the role of our courts is dead wrong. The judicial system does not exist in this country to do what is popular. It exists to ensure that laws conform to the Constitution, interpret those laws, and apply them justly.
The senators assert that the SJC decision was driven by an "aggressive political and legal strategy" on the part of the justices. This is simply not so. The basis for the justices' decision was simple - the gay marriage ban violates the Massachusetts Constitution.
Barring gay marriage, wrote Justice Margaret Marshall, was deeply harmful to same sex couples "for no rational reason." The government failed to identify any "constitutionally adequate" reason to deny the benefits, protections, and obligations of civil marriage to gay couples. That Hatch or part of the public opposes gay marriage is of little consequence.
Many have looked to civil unions as a way to confer the legal benefits of marriage without actually allowing gays to marry. But the court said such a "separate but equal" construction would treat gays as "second class citizens" - something the constitution explicitly forbids. Referring to the Brown v. Board of Education decision that struck down segregation in schools, the SJC vowed not to repeat the sins of the past.
The high court did not "legalize" gay marriage; it struck down unconstitutional laws barring it. This strikes at the heart of the senators' argument that so-called activist judges are creating legislation. Indeed, the court acknowledged the "great deference" it owed the Legislature on such social and cultural issues. But ultimately this was a constitutional issue and the SJC was right to exercise its right to review the laws.
President Bush and others have jumped on the bandwagon, accusing the "activist judges" on the SJC of being liberals hell bent on violating the opinion of the masses to advance their agenda. Yet six of the seven justices were appointed by Republicans - who typically oppose gay marriage.
Ironically, it appears as though the senators are the ones who are out of touch with the will of the people. Senators Hatch and Talent claim that judges are taking away the rights of people to govern themselves. Yet opinion on the subject is divided; May polls found that 42 percent of the nation supports gay marriage.
Ultimately, we should expect popular support for same sex marriage to rise. Last Monday homosexual couples began to marry and yet the earth failed to shake. For all the cultural and symbolic ramifications gay marriages bring, in the end the only people truly affected are those who enter into the them.
