Judges dictated the Massachusetts law redefining marriage to include same-sex unions. The people of Massachusetts, who affixed their signatures in record numbers to review the question, will not have the opportunity to vote on the legal definition of marriage in their state. This is because the state legislature, which has traditionally acted as a rubber stamp to any ballot initiative that meets legal muster, killed the ballot question which would have allowed the people to determine a law that governs them. Note that voting "yea" or "nay" was not to endorse or oppose gay marriage. It was just to say the people have a right to decide this controversial question. Liberals trust unelected judges. They fear the people.

To be clear, I disagree with the court's ruling that gay marriage is a right.

However, isn't deciding whether or not things are rights (and therefore whether they should go to ballot) in principle, under the auspices of the courts? I do not agree with their ruling, but nor do I think I agree that they acted outside their constitutional bounds.

Do liberals fear the people will overturn abortion rights?

OH WAIT!

SOUTH DAKOTA COULDN'T GET AN ABORTION BAN BALLOT MEASURE PASSED!

Please.

Thanks for that irrelevant nonsense.

The Boston Globe and the gay rights nazis...uh, "advocates" love to say that the marriage issue is one that is accepted by a majority of the citizenry. Yet, only 17,000 of them (around 8,500 couples) have taken the vow since the courts bent the laws but opponents got 170,000 signitures to get the issue on the ballot and up for a vote for ALL of the people to have their say.

So, the question is, if gay marriage is no big thang and a majority of citizens are indifferent or are in favor of it, why have the gay lobby spent so much time and money to block a vote? The answer is that they know it's a loser (been voted down consistently around the whole country) and they would rather circumvent the law and the process to jam though their agenda.

Doesn't matter though because the useless three watt bulb Mass. Legislature made sure yesterday that it likely will never come up for a vote of ALL the people.

What a f'ing embarrassment this state is.

"However, isn't deciding whether or not things are rights (and therefore whether they should go to ballot) in principle, under the auspices of the courts?"

The courts do not (or at least, ought not) decide whether a right is a right. And as I understand Dan's post, it wasn't the court that killed the ballot initiative, but the legislature.

Under the Constitutional system, and I know people are loathe to admit this, rights are codified by the democratic process. They are instituted by supermajorities of delegates of the people, or at the state level sometimes by majorities of the people themselves, and should they irritate the people, there are democratic means whereby the people can get rid of them. For instance, delegates voted on the Bill of Rights and states ratified them. Courts legally don't have anything to do with making rights, or taking rights away.

"Under the Constitutional system, and I know people are loathe to admit this, rights are codified by the democratic process. They are instituted by supermajorities of delegates of the people, or at the state level sometimes by majorities of the people themselves, and should they irritate the people, there are democratic means whereby the people can get rid of them. For instance, people voted on the Bill of Rights and states ratified them. Courts legally don't have anything to do with making rights, or taking rights away." -Dan

Sorry, think I communicated my idea poorly. I mean is it not the auspices of the court to decide on a question about pre-existing constitutional rights? For example, whether refusing gay marriage violates equal protection clauses in the Massachusetts State Constitution?

I did not mean to say that the courts ought be able to just dictate rights.

I get you, Ben. I just meant to clarify, not to respond. I don't think your initial post was all that unclear. Since very early on in the Republic, judges have seen their role in the manner that you describe. I think the egregious thing about the Mass decision was not just the invention of law out of thin air, but the hubris that enabled four judges to order the legislature to pass a law and to set a deadline.

One thing I'm confused about is, did the legislature ever in fact pass a law? I recall that the legislature asked the court to clarify whether civil unions would satisfy the ruling (which the court said it would not) but I don't believe the legislature did anything after that.

Did the courts actually order the legislature to pass a law (sorry, I have not been following this as closely as I should)? I thought they just struck down the civil unions law as unconstitutional.

Yea, if they ordered the legislature to pass a law, than that is radically unconstitutional.

Have none of you ever heard of the tyranny of the majority?

You should really look it up. It will help you a lot with these things.

IMAGINE we held a referendum on slavery in South Carolina 1845. They would have voted to keep slavery. Would that result have been valid?

A majority vote is not the essence of our republic, its representive democracy. Out framers designed our Republic to be resonponsive to the will of the people, but strong enough to resist the majority's desire to opress a minority.

Read up on what America is all about, then speak you Repubrobots.

"Have none of you heard of the tyranny of the majority? You should really look it up. It will help you a lot with these things." What just happened? What are "these things"? I don't know how I would have voted on this issue, however if one does not find what the legislature just did frightening, on principle alone. The people in this state are unrepresented by their government. Very scarry.

"Read up on what AmeriKa is all about." -TheEconomist
What is America all about, having a few unelected judges create law and then to disallow the people to have a say in this? Massachusetts wake up! TheEconomist you are hopeless.

Economist,

Do you really know anyone who has not heard of that term? And really the people you could cite about that accepted all sorts of limits on behavior at the beginning of this country that you would decry now. Jefferson supported putting people in stocks overnight for engaging in lewd public behavior, not such a great idea for the publicly-lewd minority.

It seems, especially in today's relativist world that anything that negatively affects only a small group of people affects a "minority" (people who chose to engage in this behavior) of it would be popular in the majority.

In the lazy style of argument you chose, you don't actually have to support anything. If you really assume that people have not heard of a term and need to go look it up, then you're assuming that when they do, it will support your position. And so all you've done is throw a term in there (which is essentially an Appeal to (some?) Authority (somewhere)). Which is kind of continuous with the liberal "support the judge's decisions" (when they support our (in most cases a minority's) world view. There is a lot of authoritarian thinking in a liberal when they've found an institution willing to take on the friction of popular opinion in the direction that they want things to go.

It is not oppression to take away a suspect “right” created by 4 judges that has existed for little more than 3 years, and to restore the common definition of marriage that existed for the past 400 years. And further nothing precluded the proponents of same sex marriage from using the amendment process themselves to support same sex marriage if they so desired. What is oppressive to you? The legislative process? The amendment process? There was no ban on gay marriage, no one was oppressing you. It simply didn't exist because no one created such a law.

So Dan, I have the chance to go see the Vladimir Klitschko vs. Lamon Brewster fight up in Cologne soon.

The cost is only about $150 per ticket, with train there and back, about $200 total ... my question for you is, do I spring for it? What do you think of Brewster? Have you seen him fight?

DVT

Economist,

You say that the purpose of the courts is to prevent the tyranny of the majority from infringing on the rights of the minority. 'Tis true.

But please quote to me where the constitution reads "Congress shall pass no law abridging the right of two men to receive a marriage license from their state government."

Obi Juan,

What's oppressive is the violation of equal protection. That violation is also illegal. In our legal system, state and federal laws are not allowed to violate the US Constitution. The state constitution, as part of state law, is subject to the federal constitution.

Ben,

To address your question more directly, though you probably already guessed my answer, it's in the Equal Protection Clause. This was decided forty years ago in Loving v. Virginia.

There was a law against interracial marriage, which Virginia defended as not being a violation of Equal Protection because it "treated all races equally." After all, everyone that could marry without the law in effect could marry with it in effect, so it wasn't denying the right to marry based on race. No problem, right? They can still get married; they just have to limit the choice of who they marry based on their race.

The court did find a problem with that, and ruled against this convoluted form of discrimination. Laws permitting marriage only for opposite-sex couples work the same way, only using sex as the attribute of discrimination instead of race. Either way, it violates Equal Protection.

DVT,

Brewster is a very exciting heavyweight. He has knockout power. His fights with Klitschko and Lyhakovich were excellent. Though, sometimes he doesn't show up. He is coming off retina surgery, so who knows who will show up. Also, Klitschko seems much improved since their first fight. In their first fight, Klitschko dominated, knocking Brewster down a number of times. Then...he ran out of gas and Brewster went to town. It was one of the more improbable comebacks I have ever seen. $150? I'd pay it, but I'm a big fan. Somebody's gonna get knocked out, and it will probably be Brewster early.

Brian

Loving v. Virginia makes the totally unsupported assertion that marriage is a "basic civil right of man". Specifically that having a marriage license issued to you is a basic right of man. It cites no source for this claim, and makes no argument for it. To clarify, my stance is that marriage is not a right, and for that reason the government should not be marrying anyone. I oppose any expansion of government in the realm of marriage, which is why I oppose this particularly manifestation of it.

Loving v. Virginia is a terrible piece of lawmaking.

Good point BenT. To accept my argument you have to agree that the freedom of expression and the right to privacy established in Griswald protect the right of the individual to choose who they want to marry.

I think it does. I think a free country must let individuals make their own romantic decisions and get BigGovernment out of the wedding business.

I agree we should get big government out of the wedding business. By resisting any expansion of the power of government in the sphere of marriage and working to roll back what already exists.

Ben,

I agree that the government shouldn't have anything to do with marriage, but I find fault with your other statements.

First, Loving v. Virginia was not lawmaking at all; it was merely recognition and enforcement of a law that has existed since 1868. Second, a government that hands out legally recognized marriage to certain couples but denies the same to other couples is exercising more power over its populace than a government that will grant marriage to any couple.

I don't understand why you seem to have an overall negative view of Loving v. Virginia. Even if it did expand the government's involvement with marriage, as you said, consider that at the same time it also ended the government's ability to convict people of felonies and send them to prison for one to five years over a totally illegitimate reason. Isn't that a greater issue?

Who's to decide what constitutes a tyranny of the majority? In the present case a minority which apparently know what's best. A tiny group cries discrimination and posits a "right" allegedly implicit in a democracy. Now, when the citizens (majority) counter by signing a petition to be placed on the voting ballot, democracy is considered "tyrannical"! It seem the democratic process should only work when it favors the interests of the enlightened minority. Two thousand years ago a minority group of people in Israel hid a pragmatic agenda under the cloak of law, eventually at great cost their phariseeic ways were brought to light. A tyranny of the majority is the least of our fears. Our worry is a tyranny of the minority whose fervour for its end justifies suspending democracy if deemed necessary.

Hey, well at least our legislature knows how to handle the important issues like outlawing music on ice cream trucks! Did someone say "three watt bulbs"??? Must be something in the water here.