all-encompassingly

NOTE: remember, this is just part of my argument. parts I, II, and III can be read by following those links, and parts V and up are yet to be posted.

wrathall:

in a lecture recently, professor mark wrathall made three points with reference to “hard cases” and judicial review in the discussion of ronald dworkin’s book, taking rights seriously. two of these are,

(1) we want rule makers to be responsible to the majority and
(2) we want rule makers to have access to all relevant evidence and input from all affected parties

these points rule out unelected judges and local officials as viable policy makers for the nation. they are not accountable to the majority, and they may have not gathered all the relevant evidence for the case.

as president bush noted in his remarks in support of a marriage amendment, local decisions can have hold on the entire country. we must be concerned about them. they are not accountable to most of us, but their decisions may bind us all.

in the national congress is a much better place for this debate. those who make the decisions are accountable to us, their constituents. and they have the resources to conduct surveys and do whatever is needed to ascertain the effects of their decisions for every american.

the dissenting judges in the massachusetts case note those two things in their opinions:

Dissenting opinion of Justice Francis X. Spina:

What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts. . . . The power to regulate marriage lies with the Legislature, not with the judiciary. . . .

Today, the court has transformed its role as protector of individual rights into the role of creator of rights. . . .

All individuals, with certain exceptions not relevant here, are free to marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court. . . . There is no restriction on the right of any plaintiff to enter into marriage. Each is free to marry a willing person of the opposite sex.

In this Commonwealth and in this country, the roots of the institution of marriage are deeply set in history as a civil union between a single man and a single woman.

There is no basis for the court to recognize same-sex marriage as a constitutionally protected right.

Courts have authority to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes.

The Massachusetts Legislature has erected no barrier to marriage that intentionally discriminates against anyone. Within the institution of marriage, anyone is free to marry, with certain exceptions which are not challenged.

Today the court does not fashion a remedy that affords greater protection of a right. Instead, using the rubric of due process it has redefined marriage.

Dissenting opinion of Justice Martha B. Sosman:

Reduced to its essence, the court’s opinion concludes that, because same-sex couples are now raising children, and withholding the benefits of civil marriage from their union makes it harder for them to raise those children, the State must therefore provide the benefits of civil marriage to same-sex couples just as it does to opposite-sex couples.

Conspicuously absent from the court’s opinion today is any acknowledgment that the attempts at scientific study of the ramifications of raising children in same-sex couple households are themselves in their infancy and have so far produced inconclusive and conflicting results. Notwithstanding our belief that gender and sexual orientation of parents should not matter to the success of the child rearing venture, studies to date reveal that there are still some observable differences between children raised by opposite-sex couples and children raised by same-sex couples.

As a matter of social history, today’s opinion may represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of constitutional jurisprudence, however, the case stands as an aberration.

Dissenting opinion of Justice Robert J. Cordy:

Although it may be desirable for many reasons to extend to same-sex couples the benefits and burdens of civil marriage (and the plaintiffs have made a powerfully reasoned case for that extension), that decision must be made by the Legislature, not the court.

As the court notes in its opinion, the institution of marriage is “the legal union of a man and woman as husband and wife.” . . . and it has always been so under Massachusetts law, colonial or otherwise.

While the institution of marriage is deeply rooted in the history and traditions of our country and our State, the right to marry someone of the same sex is not.

That the State does not preclude different types of families from raising children does not mean that it must view them all as equally optimal and equally deserving of State endorsement and support.

The court has transmuted the right to marry into a right to change the institution of marriage itself.

Although expressions of emotional support and public commitment have been recognized as among the attributes of marriage . . . those interests, standing alone, are not the source of a fundamental right to marry.

No State Legislature has enacted laws permitting same-sex marriages; and a large majority of States, as well as the United States Congress, have affirmatively prohibited the recognition of such marriages for any purpose.

The law with respect to same-sex marriages must be left to develop through legislative processes.

While “the Massachusetts Constitution protects matters of personal liberty against government intrusion at least as zealously, and often more so than does the Federal Constitution” . . . this case is not about government intrusions into matters of personal liberty. It is not about the rights of same-sex couples to choose to live together, or to be intimate with each other, or to adopt and raise children together. It is about whether the State must endorse and support their choices by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them. While the courageous efforts of many have resulted in increased dignity, rights, and respect for gay and lesbian members of our community, the issue presented here is a profound one, deeply rooted in social policy, that must, for now, be the subject of legislative not judicial action.