Ever since the Massachusetts Supreme Judicial Court, by a vote of 4-3, decided that gay marriage was legal in the Bay State, opponents have struggled for ways to put a check on the policy. They’ve held petition drives for a Constitutional amendment (stymied by more legalistic maneuverings), they’ve threatened to remove the judges (stymied by political maneuverings), and they’ve poured over and over lawbooks to find some way to check the judges’ decision.
One tool they discovered was a law nearly a century old, crafted to fight inter-racial marriage. Under that statute, no marriage performed in Massachusetts was legal if it was illegal in the couple’s home state. The sole exception was if the couple firmly declared their intention to move to Massachusetts. Otherwise, no couples could evade their home state’s laws by coming to Massachusetts, getting married, and returning home trusting that the Full Faith And Credit clause of the United States Constitution would force their home state to recognize their union.
When the law was brought to Governor Mitt Romney’s attention, he wasted no time in sending out a letter to town clerks across the commonwealth reminding them of the law, and directing them to follow it. This sent up a huge uproar among the pro gay marriage forces, who said the law was “outdated” and “racist” and “bigoted” and should be ignored. And if it couldn’t be ignored, it should be challenged in court. After all, the courts had been their friends when they made their gay marriage ruling in the first place. (Apparently the notion of simply repealing the law was too much work for them.)
Well, if there’s one lesson to be learned here, it’s that trusting a Massachusetts politician is almost never a good idea — and Supreme Judicial Court justices are as political as they come. (Chief Justice Margaret Marshall is married to New York Times columnist Anthony Lewis.) And in a surprise move, the justices voted 6-1 to uphold the law.
Again, let me reiterate my support for gay marriage as an institution. But I still believe that it should be done RIGHT — through legislative action or public referendum, not by judicial fiat. It is my firm belief that such fundamental changes to our social structure should be done with the consent of a majority of the people, or they will be doomed to failure. In fact, I think that in the long term, events like the Massachusetts Supreme Judicial Court’s actions will hurt the cause far more than they will benefit. We are seeing precisely the public backlash against “judicial activism” I feared. Further, by constantly eschewing legislative or public means of achieving their goals and instead resorting to the courts, the people leading the movement are expressing their fundamental distrust of the public as a whole.
The law, right or wrong, exists. And it should be followed until it is changed. We have numerous means to change the law available to us, and we should use them, or simply live with the laws as they are. This principle stands regardless of the particulars — whether the laws cover marriage, immigration, or lying under oath about oral sex.
Otherwise, we are not a nation of law, but one of the anarchy of convenience and license. And history has seen far too many of those — they’re the societies that are always referred to in the past tense.