"It's Wrong to Vote on Rights," read the signs of opponents of allowing the citizens of Massachusetts to determine the law on gay marriage. On the contrary, it's right to vote on rights. Even though rights pre-exist government, voting--by citizens or their representatives--is how rights are made legal. Saying it's wrong to vote on rights betrays an ignorance of constitutional law, and, worse, reflects an authoritarian spirit that is too common on the Left.

All rights are voted on. The Bill of Rights, for instance, didn't fall from the heavens. Delegates, and then the states themselves, voted on it. Should we grow tired of the Second Amendment, the Tenth Amendment, or--gasp!--the First Amendment, we, the people, can abolish them. That would be unwise, but voters aren't forbidden from doing unwise things.

It's true that repealing or instituting rights should require extraordinary support, such as super-majorities in legislatures. Rights that can be made or unmade by a fifty-percent-plus-one vote aren't rights. They're laws. Rights are something greater than mere laws. The democratic hurdles rights have to clear before codification grants them their status as rights. When four judges decide something is a right, it lacks the moral force of a vast majority of a community coming to agreement. That's what is so illegitimate about four judges ordering the Massachusetts legislature to legalize gay marriage, and the subsequent decision by the legislature last week that the people will have no say in the gay marriage law that hovers over them. Though gay marriage never passed a single hurdle all other rights had to get over, they now possess the protection from attempts at repeal that real rights possess. In other words, it's hard to put the toothpaste back into the tube.

The libertarian mask worn by anti-vote proponents covers an authoritarian face, but not so much that a discerning individual can't spot the truth. Any homosexual couple can walk into any Unitarian church and get "married." They are free to do this just as everyone else is free to celebrate or deride or ignore their union. What the judge-made gay marriage law in Massachusetts is about is getting everyone else--the people gay activists won't let vote on the issue--to grant their imprimatur, and subsidy, to homosexual unions. This is an issue about force, not freedom. Gay activists want the surrounding community to endorse their same-sex unions. That this endorsement takes the form of tax breaks, work benefits, and various financial perks provided by the polis makes the issue that of one community, homosexuals, forcing its values on the rest of the community.

And hasn't this been the rallying cry of the gay Left: don't force your values on me. Perhaps it's still a principle that holds weight on the gay Left, a group intolerant of outsiders forcing morality upon them but tolerant of forcing their own morality on outsiders.

I think your statement mischaracterizes those four judges. Let's look at the appropriate section of the text of the decision:

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. See, e.g., Michaud v. Sheriff of Essex County, 390 Mass. 523, 535-536 (1983).

At this point, it's important to look up Michaud v. Sheriff of Essex County, which I found a good description of:

Agencies of the Commonwealth must comply with their constitutional duties, and may be ordered by a court to do so, even if compliance requires a legislative appropriation. For example, this Court in Michaud v. Sheriff of Essex County, 390 Mass. 523, (1983), ordered improvements in county jails even while noting that the defendants (county commissioners and the Massachusetts Commissioner of Correction) “present a convincing case that access to this money [needed to comply with the court order] involves a process of legislative and executive decision making over which they have no control.” Id. at 535. Holding that sanitary conditions in county jail facilities violated the Eighth Amendment to the U.S. Constitution and Article 26 of the Massachusetts Declaration of Rights, this Court stated: “We flatly reject the notion that an arm of the State may be allowed to violate an individual’s constitutional rights because funds have not been appropriated to remedy the wrong.” Id. at 532. See also Blaney v. Commissioner of Correction, 374 Mass. 337, 342 n.3, (1978)

So let me summarize. The plaintiffs asked the court to declare that categorically denying same-sex marriage is illegal according to Massachusetts law. The court agreed that was the case, and proposed a remedy that preserves "as much of the statute as may be preserved in the face of the successful constitutional challenge."

The constitution must be respected, however, they delayed their judgment for six months in order to allow the legislature a chance to set the compliant law, rather than the court. The court was effectively saying "In case you don't like the way we resolved this constututional problem, we are giving you half a year to pass your own solution before ours goes into effect."

And somehow, the fact that the judges gave the legislature six months before their ruling goes into effect gets spun into the notion that they "ordered the legislature to pass a law" and their intention to let the legislature decide the law rather than themselves gets construed as them being "activist judges" trying to "legislate from the bench." This is completely backwards.

To any true opponent of judicial activism and legislation from the bench, this decision should be lauded as a model example of a court enforcing a constitutional mandate while ensuring that they are not passing new laws.

Must I really go over the whole tyranny of the majority thing again?

The US is not a democracy. Its a republic. Never has direct democracy worked. Its a failure.

"Economist": I couldn't agree more that this is supposed to be a republic and not a democracy. But please tell me what dual tyranny of judges and special-interest-extortion-artists pressuring the legislature has to do with being a "republic."

Why don't you liberals admit what they are: elitists who want to force their views of morality on everyone else, overturing millenia of tradition in the process. Look up: arrogance.

skeptic "Look up: arrogance."

Hey, maybe Ec never liked that picture of himself. :D

Next up: the court finds that polygamy laws exclude certain "groups of people" from access to civil marriage to the preference of "groups of two" (for some odd reason).

That this isn't a paper-thin shell game is a cause to wonder. The State has legally recognized marriage, it didn't create it. Culture did. Access to "civil marriage" is simply access to legal privileges of what a state has recognized for the cultural entity of marriage.

The state has divorced with the *concept* marriage, but they're keeping the name. (Because they have the guns.)