MORE ON MASSACHUSETTS DECISION: Eve replies to Barry Deutsch, part one

'Way back in the days of auld lang syne, Barry Deutsch sharply took issue with my National Catholic Register column on the Massachusetts Supreme Judicial Court's Goodridge decision. ("How many premises of Eve's argument are wrong?") Some of his sharpness was warranted--the column has a couple major blunders, for which I apologize. I choose to blame deadline pressure rather than basic incompetence, but you all of course can make your own diagnoses....

The central claim I sought to illustrate is that the court, by arrogating to itself the power to redefine marriage in spite of Massachusetts law and all recorded history that I know of, was acting as a group of philosopher-kings, yanking the law out from under the citizenry. I stand by that claim. Barry points out that the examples I focused on--several pieces of legislation cited by the court as showing pro-SSM tendencies in the law, even though those same pieces of legislation had passed amid constant reassurances that they would not lead to SSM--were in no way central to the court's opinion. He's right. I shouldn't have focused on that stuff. That's one of my two major mistakes in the column. (There's one mistake for each half!)

However, the arguments that are central to the opinion are no better. There are basically two: an argument about marriage rights, and an argument about rationality. One is circular and the other is contemptuous. Both exemplify the arrogant approach to the law that I (ineptly) attacked in my column.

The court's opinion begins by rejecting one pro-SSM argument: that SSM is already legal in Massachusetts because the relevant statutes do not formally state that each couple coming to be married must consist of a bride and a groom. The court, rightly, points out that the statutes don't say that because everybody knew it. As the majority opinion states, "We interpret statutes to carry out the Legislature's intent, determined by the words of a statute interpreted according to 'the ordinary and approved usage of the language.' Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The everyday meaning of 'marriage' is '[t]he legal union of a man and woman as husband and wife,' Black's Law Dictionary 986 (7th ed.1999), and the plaintiffs do not argue that the term 'marriage' has ever had a different meaning under Massachusetts law. ...This definition of marriage, as both the department and the Superior Court judge point out, derives from the common law. ...See also Commonwealth v. Lane, 113 Mass. 458, 462-463 (1873) ('when the statutes are silent, questions of the validity of marriages are to be determined by the jus gentium, the common law of nations'); C.P. Kindregan, Jr., & M.L. Inker, Family Law and Practice § 1.2 (3d ed.2002). Far from being ambiguous, the undefined word 'marriage,' as used in G.L. c. 207, confirms the General Court's intent to hew to the term's common-law and quotidian meaning concerning the genders of the marriage partners." (I note that this is one way in which laws against interracial marriage are strikingly different from laws against SSM: Because the common-law definition of marriage did not bar interracial marriage, the color bar had to be written into statutory law.)

Oddly, though, the court forgets what it just said as soon as it turns to the question of whether barring same-sex marriage violates a right to marry. The court cites a number of cases about the right to marry--and yet never tells us what this is a right to. It can't tell us that, because--as it just pointed out--"marriage" in the law rests on common-law definitions that would not include same-sex unions. (Justice Robert J. Cordy points this out in his dissent: "The same semantic sleight of hand could transform every other restriction on marriage into an infringement of a right of fundamental importance. For example, if one assumes that a group of mature, consenting, committed adults can form a 'marriage,' the
prohibition on polygamy (G.L. c. 207, § 4), infringes on their 'right' to 'marry.' In legal analysis as in mathematics, it is fundamentally erroneous to assume the truth of the very thing that is to be proved.") The court pretends that it has found a restriction of the right to marry, when by the logic of its own previous statements it has actually invented a right to redefine marriage.
posted by Eve at 5:25 PM | Link |

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