Mayday!
Happy Law Day, everyone!
Somewhere along the line, it was decided by those wily Powers that Be that May 1, known worldwide as May Day in commemoration of the Haymarket Riot over workers' rights (or over anarchists' tussles with police, your choice) in Chicago, Ill., this week in 1886, would be celebrated as "Law Day" here in the U.S.
This year we're especially reflecting on the 50th anniversary of Brown v. Board of Education, the landmark ruling that applied the 14th Amendment's equal protection language to the question of whether "separate but equal" was, in fact, equal.
Various bar associations and district attorneys have signed on board with Law Day as a way to teach our kids that "obedience to law is liberty," as it says on the front of Worcester County Courthouse (I am told it also says this on a courthouse in Cleveland, although presumably not the [David] Justice Center). Even my dad's old stamping grounds, the Chicago Bar Association, has signed on to the new, politically correct holiday, without so much as a nod, it seems, to the police riot that gave its name to the "other" cause being commemorated today.
Perhaps someone ought to shout a "mayday," however, as the topic of homosexual marriage has come up much too often in discussion of Brown v. BOE. Predictably, commemorations in Massachusetts turned into a quote-op for activists on the homosexual marriage issue. Two (two!) stories about Law Day are on the front page my newspaper this morning, including one reporter's before-the-jump contention that there are "unmistakable similarities between the 1954 [Brown] decision and a recent ruling by the SJC that will give same-sex couples the right to marry."
In a word, no. While some opponents of the court's decision argue, rather hysterically, that it is an example of moral corruption for which we will all be smote and turned into pillars of salt, the ones who are intellectually on board with this thing called "America" say, I believe rightly, that the state's Supreme Judicial Court overstepped its bounds in this case.
That doesn't stop the other story's writer from implying that the SJC ruling is in line with the philosphy of the Warren Court, which she quotes a legal studies professor as saying "established itself as the final arbiter." I had always thought that the court established itself as the final arbiter 150 years earlier in Marbury v. Madison, but what do I know?
Brown v. BOE is simply not comparable to Goodridge v. Department of Public Health, the SJC decision. Brown v. BOE followed and relied upon the 14th Amendment, which was adopted with the intent of providing equal protection of the laws for racial minorities, who until that point had been treated as second-class citizens (or worse). Goodridge, on the other hand, completely invents a new "right" by redefining the word "marriage."
It would be one thing if homosexuals had been denied the right to marriage, as traditionally understood -- i.e., if "straight" men had been allowed to marry women, but "gay" men had not been allowed to marry women. But marriage, the word, means a union of a man and a woman. The lawmakers who granted tax breaks or legal benefits to marriage did so in the understanding that they were contributing to the man-and-woman version of marriage.
If our increasingly socially liberal world wants to change the definition of marriage, well, go ahead and do it. But do it the right way. This is a change in our understanding of rights and in our state (or national) policy. It should have been done through the Legislature.
The newspaper quotes a Northeastern University law professor, ostensibly defending the SJC's actions in the face of widespread criticism, as saying: "we need some part of the process that stands aside from the pressures of politics. If we don't have that kind of independent judicial role, constitutions end up meaning very little."
With all due respect, professor, if we keep changing the meaning of words and ignoring the separation of powers as it pertains to limits on the courts, constitutions end up meaning even less.
Comments
For what it's worth, the OED lists some seven historical forms of the past participle for the verb "smite". Your choice of "smote" has a fine literary heritage-- they list Spenser among its users-- but if it's KJV resonance you want, try "smitten". Which sounds silly now, yes, but that Bible's editors were consistent, using "smote" as a simple past form and "smitten" as the participle.
Posted by: Chris | May 1, 2004 5:45 AM
I have to say, I find it a bit of a contradiction that you're crying for separation of powers and limits on the courts, and citing the Brown case in the same breath. The Brown case used to be what people were complaining about when they talked about judicial powers. If that had been left to "legislation" it never would have been done. I'm assuming you're not arguing for state sponsored segregation? People all over the country were complaining about how the Supreme Court had overstepped its bounds. The legislature was in no position to make the statement that segregation was wrong. The voters didn't support it, as they don't seem to support gay marriage.
In response to Brown in 1956: the “Legislature of Alabama declares the decisions and orders of the Supreme Court of the United States null, void, and of no effect.”
The general public sometimes just isn't prepared to do what is right. Judges, who don't have to bow to the public, are the only ones in a position to stand up for what is unpopular. The courts were established that way intentionally.
Disallowing segregation was a change in understanding of rights in state and national policy (not to mention increasing social liberalism). It was not and would not have been done by the legislature.
If you're going to stand up for the justices who brought us desegregation on the basis of its consititutional merits, you should be prepared to continue to trust that court to decide the constitutionality of other policies. The Brown decision was certainly unpopular, but fortunately the general population wasn't allowed to dictate what rights were and weren't constitutional.
Posted by: Michelle | May 1, 2004 7:09 AM
I realize that many people (in my opinion, falsely) decried Brown as unacceptable judicial activism. I don't hold with that opinion, however.
In Brown, the court found that "separate but equal" did not give the equality blatantly called for in the 14th Amendment. This is a clear case of interpreting the constitution.
In Goodridge (the recent Massachusetts decision), the court has decided that homosexuals now need to be given a right that nobody ever had before: the right to marry a partner of the same sex. The invention of new rights, no matter how necessary or well-intentioned, is the proper realm of the legislature or the people.
It was clearly the intent of the 14th Amendment to guarantee equal rights and equal opportunities to minorities, which at that time were understood to be racial minorities. It has not been the clear intent of any Massachusetts law to guarantee same-sex marriage rights to anyone. By all means, the court should point out and fix any places where laws disagree with the constitution; but by no means should it manufacture new rights. That is activism, and a violation of separation of powers. --MB
Posted by: Mike | May 2, 2004 3:27 AM
The court did invent a new right in Brown, the right to go to school with people of different races. That hadn't existed before. If you're steadfastly arguing that the Supreme Court can not grant people rights they didn't have before, you can't support the Brown decision. It was seen as a valid interpretation of the Constitution to declare separate but equal proper policy in Plessy, and that had been keeping rights from people for years, with the 14th amendment in place. There was no right there of people to contest that. It seems very clear to you now that Brown was a simple interpretation of the Constitution, but it really wasn't. There was huge disagreement about wether or not that was the intent of the 14th amendment (and there were probably more people saying it wasn't than it was).
Hindsight may be 20-20 for you about the Brown case. Sure, separate isn't equal. But, 50 years from now, people may be saying the same thing about gay rights. You cannot say that all rights must be granted by the legislature without contesting the Brown decision, because the Supreme Court created a wave of new rights with it.
Posted by: Michelle | May 2, 2004 7:23 AM
At the risk of this turning into a tennis match ...
I see a key difference between the interpretation in Brown and that in Goodridge. In Brown, the court had before it a clear mandate from the people (i.e. Amendment 14): no state shall deny equal protection of the laws to any resident. The intent of public education laws is to educate children. Inasmuch as separate facilities by race invariably resulted in unequal implementation of those laws, the court found them unconstitutional. At no point was a new right invented; the court simply found that by not applying a certain right (right to an education, guaranteed in most state constitutions) equally, segregationist school systems were in violation of Amendment 14.
In Goodridge, on the other hand, Judge Botsford tries to use the same "equal protection under the laws" language to justify expanding the definition of marriage. She draws a false analogy. In Brown, the court used the 14th Amendment to guarantee that the same right (public education) was applied equally. But the right to marry is already applied equally. The term marriage, prior to last November, had the legal meaning of "man and woman." Any man, and any woman, subject to certain public health exceptions, were eligible to marry. To expand this definition should be a legislative endeavor, not a judicial one.
Put another way: public education laws were written to ensure that children are educated -- not to ensure that blacks and whites have different facilities. Thus the "separate but equal" policy had nothing to do with the core mission of public education; it only determined how education law was implemented and thus was fair game for the 14th Amendment equal protection clause.
Marriage laws, on the other hand, were instituted to give state sanction to a specific, male-female union. The question of the gender, or indeed the number, of the parties involved in a marriage cuts right to the core issues surrounding marriage law. TO change these is to fundamentally alter what marriage means (Botsford admits this in her opinion) -- not to simply implement it differently. FOr that reason, it goes beyond the mandate the Supreme Court used in Brown.
As I stated in my original post, I'm not against expanding the definition of marriage. I am against expanding the power of the judiciary past its constitutional limits.
Posted by: Mike | May 6, 2004 12:11 PM