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June 14, 2004

But for a Law Degree

Last week, I noticed that the Liberty Counsel has picked up a strategy for fighting Goodridge about which I've been wondering for some time:

When the Massachusetts court bypassed the legislative and executive branches to change state marriage law, it upset the separation of powers in the state and violated the plaintiffs' rights, under the "guarantee clause" of the U.S. Constitution, to have a republican government, said Mr. Staver, who with other conservative lawyers represent 11 Massachusetts lawmakers and a Boston resident.

Back in February, that argument occurred to me in reaction to Jonathan Rauch's continued assertions that a state has a right to allow its judiciary to be activistic. As I wrote in an email exchange with a conservative writer:

If there's even a guarantee that citizens' state governments will be representative in nature, then there might be room to argue that it is not an affront to federalist principles for the federal government to take action should a judicial oligarchy begin to form. ...

If it is a positive duty of the U.S. to ensure state-level representative democracy, then Rauch's amendment would arguably go against the federal side of the federalist principles that he purports to value by enshrining the notion that the people of a state have a right to hand over their government to a judiciary.

I can't become the King of Rhode Island, even if initially elected to the post, and the Massachusetts legislature can't vote to hand its authority over to the Catholic Church. Therefore, it's a short step to conclude that the Massachusetts legislature can't abdicate its authority to the state's unelected judges. One can argue that the threshold hasn't been reached in Massachusetts, but it's becoming clear to me that there is a threshold.

That, in itself, is an important point to bolster, not the least because advocates for same-sex marriage, for all of whom the courts are a central mechanism, will attempt to wrench it loose, as I found in extended discussion with Gabriel Rosenberg in comments to a post the next day.

Posted by Justin Katz at June 14, 2004 7:17 PM
Marriage & Family

No comments on this post. I guess you readership must be in complete agreement with you. I certainly am.

Posted by: Mike O at June 15, 2004 1:40 PM