White House Rhetoric About Activist Judges Ignores History, Role of Courts

President Bush and other opponents of equal marriage rights have vilified the justices on the Massachusetts Supreme Judicial Court who have ruled in the Goodridge case that their state constitution does not allow the state to discriminate against same-sex couples seeking to get married. According to opponents of the recent Massachusetts ruling, the judges have no right to extend marriage equality to same sex couples. In fact, the role of judges is precisely to interpret our laws and constitutions.

Our history has many examples of judges and courts moving the nation toward justice, often before legislatures were ready to do the right thing. Courts ruled against segregated schools and other public facilities at a time when segregation had widespread support. In 1967, the Supreme Court overturned state laws that prohibited couples from getting married if they were not of the same race. Looking back now, we can hardly believe those laws were still being enforced as recently as the 1960s. Fundamental principles are embedded in our state and federal constitutions precisely to prevent basic rights from being denied based on a majority vote. The federal and state constitutions set out principles, including equality under the law, and the courts apply those principles to our laws. That is what the Massachusetts court has done.

It is true that the Massachusetts ruling has sparked controversy and intense public debate, as did previous rulings on interracial marriage and segregation. That debate reflects both changing attitudes toward support for full legal equality and some continuing resistance to equal marriage rights. This spirited discussion is another reason not to rush to give discrimination constitutional permanence. The public understands this. Polls have shown that most people in Massachusetts are opposed to amending their state constitution by writing discrimination into it, and that most Americans oppose a discriminatory amendment to the U.S. Constitution.

For all the rhetoric about protecting the will of the people, a federal marriage amendment would impose a discriminatory standard on Massachusetts and other states that have extended a measure of equality and legal protection to same-sex couples and their families through legal or legislative action.

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