They've overruled millenia of human customs regarding marriage and violated the separation of powers by commenting on pending legislation.(the point to which I am responding is emphasized)
The text of the Court's opinion,
http://www.boston.com/news/specials/gay_marriage/sjc_020404/, begins (the bit that the wise person wants to know before blowing an opinion out is emphasized):
On February 3, 2004, the Justices submitted the following answer to a question propounded to them by the Senate.
I'm not seeing any violation of the separation of powers by the Court.
It is common for constitutions to provide for questions to be "referred"
by the legislature (or executive) to a jurisdiction's highest court with inherent powers to interpreted and apply the constitution. The Canadian constitution contains just such a provision, under which the questions currently before the Supreme Court of Canada regarding same-sex marriage were in fact referred by the executive, in our case.
Here's what happened, again from the Court's opinion -- be sure to read the last paragraph I quote:
The undersigned Justices of the Supreme Judicial Court respectfully submit their answers to the question set forth in an order adopted by the Senate on December 11, 2003, and transmitted to the Justices on December 12, 2003. The order indicates that there is pending before the General Court a bill, Senate No. 2175, entitled "An Act relative to civil unions." A copy of the bill was transmitted with the order. As we describe more fully below, the bill adds G. L. c. 207A to the General Laws, which provides for the establishment of "civil unions" for same-sex "spouses," provided the individuals meet certain qualifications described in the bill.<1>
The order indicates that grave doubt exists as to the constitutionality of the bill if enacted into law and requests the opinions of the Justices on the following "important question of law":
"Does Senate, No. 2175, which prohibits same-sex couples from entering into marriage but allows them to form civil unions with all 'benefits, protections, rights and responsibilities' of marriage, comply with the equal protection and due process requirements of the Constitution of the Commonwealth and articles 1, 6, 7, 10, 12 and 16 of the Declaration of Rights?"<2>
Under Part II, c. 3, art. 2, of the Constitution of the Commonwealth, as amended by art. 85 of the Amendments, "<e>ach branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions." "<A> solemn occasion exists 'when the Governor or either branch of the Legislature, having some action in view, has serious doubts as to their power and authority to take such action, under the Constitution, or under existing statutes.'" Answer of the Justices, 364 Mass. 838, 844 (1973), quoting Answer of the Justices, 148 Mass. 623, 626 (1889). The pending bill involves an important question of law and the Senate has indicated "grave doubt" as to its constitutionality. We therefore address the question. See Opinion of the Justices, 430 Mass. 1205, 1207 (2000).
Now, would anybody -- especially anybody who is such a devotee of constitution thingies as we know Hammie is -- want to be retracting his allegation that the Massachusetts Supreme Court is analogous to Nazis and fascists and thugs?
As for overruling "millenia <
sic> of human customs" etc. ... well, so did those notions of
equal protection and
due process I guess, eh? You know: the notions
in the constitution in question, which govern the constitutionality of stuff the legislature does, and which the Court here applied in rendering its opinion.
Is somebody suggesting that some pigs are, or oughta be, more equal than others? Funny how that's not what
the constitution in question says.
I believe I was just saying yesterday how it often seems to me that some fans of constitutions are really just fans of the interpretations and bits of constitutions that serve their own interests ...
.
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