Wednesday, November 19, 2003

My opinion of the legal merits of Massachusetts Supreme court decision has definitely gone down. My problems with the decision are the same as they were in yesterday's post: ignoring original intent in legal interpretation. The difference from yesterday is that I've realized how egregious this particular legal misinterpretation is. Four of seven judges have put themselves above the law in an incredibly arrogant manner. Just look at what they wrote.
We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.
So that's how it's done. Well, I'm going to construe pork as the flesh of a mammal. Now isn't beef mammalian flesh too? Only a bigoted restaurateur would serve pork but not beef. You say pork has meant something else for centuries? You must be one of the unenlightened who just can't keep up with our evolving food standards. Like our living constitution, they are dynamic, always adapting to the views of currently living judges.

Do you think I'm being too harsh? Just look at how the decision justifies its reconstruing of marriage. They use "evolving constitutional standards" to overturn centuries-old standards they dislike:
Canada, like the United States, adopted the common law of England that civil marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others." Id. at, quoting Hyde v. Hyde, [1861-1873] All E.R. 175 (1866). In holding that the limitation of civil marriage to opposite- sex couples violated the Charter, the Court of Appeal refined the common-law meaning of marriage. We concur with this remedy, which is entirely consonant with established principles of jurisprudence empowering a court to refine a common-law principle in light of evolving constitutional standards. See Powers v. Wilkinson, 399 Mass. 650, 661-662 (1987) (reforming the common-law rule of construction of "issue"); Lewis v. Lewis, 370 Mass. 619, 629 (1976) (abolishing common-law rule of certain interspousal immunity).
This situation is intolerable. Supreme courts at the state and federal level are doubling as upper legislative chambers. These legislator-judges are in many cases appointed for life, though they are elected in some states. Often the only way to veto a law they enact is through constitutional amendment. Massachusetts now needs a constitutional amendment. The nation doesn't . . . yet.

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