Publius

Is there a deep divide in our country? Simply put yes, but then again there always has been. North vs. South. Rich vs. Poor. Urban vs. Rural. (Ultra) Religious vs. Secular. These divides are not new but have existed for as long, no, longer then our country has been in existence. What does this latest vote show, if anything? I would submit to you that it shows that Americans are just only as divided as they ever have been. So Bush got more votes then Kerry. So what? Does this mean there is a new deeper divide among Americans? No. It simply shows that Bush’s team was better able to get out voters on election day. Is Bush’s reelection the harbinger of some great new divide in American culture? No, America has always been a greatly divided country. It is both our blessing and our curse. Because of these divides America has been driven to do great horrors to our own citizens (Slavery, Segregation, etc). But these divides have also driven us to some of our greatest accomplishments.

Now to depart a moment to address a different direction that this post seems to be slipping into, that being the topic of gay marriage. It’s always amazing to me see so many people throw themselves into this topic and make such conclusive statements about certain court decisions when it is evident that they aren’t really addressing the opinion expressed by the court but their own personal feelings on the topic. Case in point, the decision reached by (certain “liberal” judges in) the Massachusetts’ Supreme Court. So, and because we are talking about a “legal” definition here, lets take a look at what those “liberal” judges really had to say shall we, and not all that political pundit bullshit we are fed by the media. So here it is, or at least the brief edited version of the key points (please feel free to read the entire for yourself). Goodridge v. Department of Public Health 798 N.E.2d 941 (Mass.,2003.)

“ Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. "Our obligation is to define the liberty of all, not to mandate our own moral code." ...

... The larger question is whether, as the department claims, government action that bars same-sex couples from civil marriage constitutes a legitimate exercise of the State's authority to regulate conduct, or whether, as the plaintiffs claim, this categorical marriage exclusion violates the Massachusetts Constitution. We have recognized the long-standing statutory understanding, derived from the common law, that "marriage" means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question.The plaintiffs' claim that the marriage restriction violates the Massachusetts Constitution can be analyzed in two ways. Does it offend the Constitution's guarantees of equality before the law? Or do the liberty and due process provisions of the Massachusetts Constitution secure the plaintiffs' right to marry their chosen partner? ...

... We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. No religious ceremony has ever been required to validate a Massachusetts marriage.

In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. While only the parties can mutually assent to marriage, the terms of the marriage--who may marry and what obligations, benefits, and liabilities attach to civil marriage--are set by the Commonwealth. Conversely, while only the parties can agree to end the marriage the Commonwealth defines the exit terms. ...

... The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language. That the Massachusetts Constitution is in some instances more protective of individual liberty interests than is the Federal Constitution is not surprising. Fundamental to the vigor of our Federal system of government is that "state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution."

The individual liberty and equality safeguards of the Massachusetts Constitution protect both "freedom from" unwarranted government intrusion into protected spheres of life and "freedom to" partake in benefits created by the State for the common good. Both freedoms are involved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family--these are among the most basic of every individual's liberty and due process rights. ...

...In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion. ...”

So did the Massachusetts Supreme Court define “marriage” to include gays as many people have claimed? No, they simply stated that baring a state constitutional amendment, the Massachusetts State Constitution bared the legislature from defining “marriage” as only between one man and one women. Was the Court acting out of some liberal agenda? Maybe, but more importantly they were adhering to the law, and their ruling was based upon upholding that law. 11 states recently passed State Constitutional referendums defining marriage, why? Because that is how law is made. Had Massachusetts such a constitutional provision defining marriage, then, the court would have been bound to uphold that provision. As it was, however, no such provision existed and because of this the court was bound as a matter of law to make the ruling that they did. Thank God for “liberal” judges who know how to follow that law, instead of handing down opinions based upon personal religious moral ideologies.