Guest editorial: Judicial tyranny

Arrogating imperious powers to itself, the court created a new law -- or more precisely, dictated that a new law be written. It did so by an abuse of logic that then required the invention of a new definition for a word.

The ruling itself acknowledges that the author of the state's 223-year-old constitution, John Adams, could never have meant his work to be construed as favoring such an outcome as the judges were now forcing on the state. It was nevertheless their duty, said four members of the seven-member court, to uphold the constitution's affirmation of "the dignity and equality of all individuals." And they viewed the state's marriage laws as an infringement on that equality.

But how could that be? The court's answer was that homosexuals were being deprived of "access to an institution of fundamental legal, personal and social significance -- the institution of marriage -- because of a single trait."

The assertion is nonsense. It is true, of course, that Massachusetts marriage laws apply to the union of members of the opposite sex; that's what marriage laws everywhere have always done. But that fact is different from saying that people who do not avail themselves of those laws, for whatever reason, are being purposely excluded. The court's reasoning is akin to saying the refusal of some people to buy merchandise they don't desire or that does not suit their needs is a denial of their right to buy it. There was just one way for the court to get out of the logical mess it had gotten itself into. It would redefine marriage as a different kind of institution from what it has ever been.

"We have recognized," the court's chief justice wrote, "the long-standing statutory understanding, derived from the common law, that 'marriage' means the lawful union of a woman and a man." From now on, the court arbitrarily ruled, the meaning of marriage in Massachusetts will be "the voluntary union of two persons as spouses, to the exclusion of all others."

Put that way, a failure to allow same-sex marriages would indeed be a denial of equality under the law. But it is intellectually fraudulent to make your argument work by coming up with an understanding that, so far as scholars can deduce, has never obtained in recorded history. The fraud was perpetrated for a very simple reason. It is only by such sleight of hand that the court can rationalize its constitutionally unwarranted decision to fundamentally alter the nature of a central social institution in Massachusetts.

If the people of Massachusetts or any other state want such a change in their marriage laws, they can get there through action by their representatives in the legislature. That's what is known as democracy. What the court did is judicial tyranny, and that's the case no matter what stance anyone takes on what might be good or bad about gay marriage.