In response to Massachusetts gay marriage verdict

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Here are the links courtesy of Chandos:

The verdict: http://www.masslaw.com/signup/gtwFulltext.cfm?page=ma/opin/sup/1017603.htm

Massachusetts constitution: http://press-pubs.uchicago.edu/founders/documents/v1ch1s6.html

As the Constitution of Massachusetts provides:

This means that no group shall be accorded special benefits on any other basis than service to the public. Gay plaintiffs calling for a redefinition of the institution of marriage for their benefit don't fulfil this criterion: the privilege they claim has no grounds in any service to the public whatsoever.

Government, which without the definite article "the" preceding means not merely the cabinet, but the whole body of officers and magistrates in the service of the public, including judges, is constitutionally obligated to aim for the protection, safety, prosperity and happiness of the people. Perverting acts of governance in order for them to promote private interest of any one man, family, or class of man is expressly prohibited. Favouring a certain group of people to such an extent as to make them privileged in receiving benefits and exempt from meeting criteria established for the distribution of the said benefits, is not in accordance with this article.

This article manifestly states that all liberty, protection or benefit of whatsoever kind accorded by the state is intrinsically tied to the obligations that necessitate the recognition or bestowal of the said liberty, protection or benefit.

As the time-honoured institution of official recognition of marriage, civil or otherwise, by the state, which has been the cornerstone of the Western society for centuries, is tied, in so far as benefits are concerned, to the obligations that obtaining such recognition incurs, it is not permissible to separate the benefits provided by the said recognition from the obligations.

One of these obligations is satisfying the criteria established by proper legislative authority for bestowal of the said recognition. These criteria are specified and for centuries have been understood and exercised in such a manner as to include the requirement of gender difference, more precisely: to be man and woman.

The court in its verdict supplants gender-specific language with gender-neutral abstracts and from the outcome infers that the Legislative of the state has never intended to formulate an express prohibition of same gender marriage. This is a classic circulus vitiosus error or, if you prefer, a loop.

This loop results in a contra legem interpretation of marital laws. Gender-specific language constitutes a part of the definition of marriage. Consequently, altering it alters the definition of marriage. As a result, it redefines the scope of legislation of marital laws (the area they regulate). For this end, the authority of the judicial power does not suffice. What is more, this sort of authority does not reside with the Legislative itself: it requires a change in the original text of the law.

Judicial review of laws is, as the name suggests, review. As such, it is intended to review a law and not to adapt it to political or social changes, which are not mere technicalities of historic grammar. To respond to social trends with relevant changes in the law is an exclusive task of the Legislative. Judicial authority is not constitutionally empowered to enact such changes and it lacks the democratic legitimacy of a legislative body elected by the ruled.

As the very beginning of Part 2 of the Constitution expressly provides that "they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof". First, adjusting social relations to meet the persuasion of the judges in the court, even their sense of what is right or wrong, is not in the competence of the court. Second, in their rulings, the judges are supposed to have the welfare of the Commonwealth in mind and not their own abstract ideals, which are, in this particular case, for one part strong convictions and for the other part putative assertions.

There is no evidence to support the bald assertion that same-gender "families" are equally desirable environments for raising children. So far, there have been diverse structure in which children are raised and yet the monogamous union of man and woman sealed by marital vows has been endorsed by the state. Promoting whatever else as the optimal setting is an experiment with an infinite range of unpredictable ramifications. As such, it lies within the scope of competence of the legislative power and not the judicial power.

What is more, if homosexual unions were to be held altogether equal to traditional marriages, the gender of the intended adoptive parents could not be a factor. Therefore, children would be given into adoption to traditional and gay marriages with no difference. This would be inconsistent with the standing marital laws, which are of the view that a marital union of a man and a woman is the optimal setting for raising children.

Those laws are standing and the court cannot decide whether to try and deprecate them or to user their binding power to support the verdict. However, these two stances are inconsistent with each other and as such are mutually exclusive. In the same case, the same law cannot be used to support one view and depracated when it contradicts another view. That lacks consistency and is a logical error.

Judge Marshall construes the understanding of marriage as a union of a man and a woman, as an exclusion of homosexuals from marriage elligibility. That is wrong for many reasons, which I will point out below:

1) Exclusion is putting outside the scope of a definition something that normally fits within the scope of that definition. Something that does not normally fit within the scope of a definition cannot be excluded from it.

2) Homosexuals are not excluded from marriage elligibility. They can, at their sole discretion, marry any given consenting person that meets the criteria set by standing marital laws, as anyone else. Whether they exploit the opportunity or not and for what reasons, is not the business of the court.

3) Homosexuals are not discriminated on the grounds of their orientation. Marital laws have nothing to do with orientation and neither the man nor the woman is required to be of any specific orientation. That homosexual men are not attracted to women and vice versa and for that reason they choose not to exploit the opportunity to marry and claim the benefits accorded by the state, does not yet mean that they need to receive anything in exchange. Most certainly, they do not have a generic right to have their non-marital unions declared marriage by the state.

4) Benefits accorded to marriage are at the state's discretion and do not create any right on the side of an individual, who does not fulfil the criteria established by marital laws, to receive comparable benefits. Not any more than wealthy people are entitled to social aid money or than heirs are entitled to claim inheritance before the testator dies. Judicial review and the authority of the courts are not meant as recourse from requirements set by the Legislative. Courts are intended to uphold the law, not to be means of going around it.

Given above concerns, the use of the phrase "denying civil marriage to same-sex couples" by Judge Marshall is misleading. The Judge gives it a meaning of taking away something which is due, and not simply denying a claim for privilege, which it in fact is.

Another manipulation on the part of Marshall is the "many hold" construct. By using the same abstract phrasing "many hold equally strong religious, moral, and ethical convictions that", he dodges the manifest disproportion in number between the two groups. The number of people who believe that same sex marriage should be allowed is not as high as the number of people who shouldn't. Those two competing views don't start from and are not currently in the same position: the former is a new trend and an untested claim, the latter is the cornerstone of the society. There is no equality here, neither in number, nor in importance.

Yet another manipulation on the part of the Judge is tantamount to deliberate misinformation:

1. Homosexuals are treated no differently than their homosexual neighbours under the standing marital laws.

2. In general, treating two groups no differently precludes privilege on any side. Even the one supposed to be (hereunto) discriminated.

3. Following #2, Religious beliefs which dictate that a homosexual person be treated with equal compassion and respect as a heterosexual person don't automatically extend to include gay marriage approval. Christian churches are an example of this: they are very much against discrimination and consider it incompatible with Christian attitude, but they are no less against gay marriages and adoption of children by gay couples. As such, these beliefs cannot be called to support a view that gay couples should be awarded marital status.

4. Following #2, the same as in #3 refers to non-religious moral objection to discrimation of homosexuals, which does not extend to include support for gay marriage or child adoption, which are not a matter of treating homosexuals the same as heterosexuals, but of according them special privileges.

5. Following #2, ethical convictions that oppose discrimination are not automatically in favour of according minority privileges.

6. Following #1-5, the fact that groups of people oppose treating homosexuals differently for whatever reason, does not yet mean the groups are in favour of gay marriage and gay child adoption, which in consequence means that the wide support that Judge Marshall claims is a fiction.

Manipulating the audience does not stop there, however. Below is another example of distortion:

Nothing has been done by government to prevent expressions of intimacy between gay plaintiffs and their partners. Neither were any steps taken to affect their choice of an intimate partner. This has nothing to do with according marital status and privileges.

And now a piece of empty rhetoric:

First, that is an opinion and an evaluation, not even a sentence in the logical sense. Second, nothing follows from that; there is no obvious, immediate conclusion. It contributes no substance.

Next, the state is supposed not to interfere in shaping one's identity, but it is not supposed to endorse whatever choices the individual makes. It is not supposed to provide financial, legal or social means of enactment of those choices.

Also, two homosexual lovers cannot both be biological parents of a child. Adoption, therefore, is the only way. However, adoption is primarily intended for the welfare of the child, not for the well-being of the putative adoptive parents. There exists no right whatsoever to be allowed to adopt children simply because an individual cannot have any right in the person of another individual. Neither do a homosexual person's rights override the child's rights. The homosexual family model has not been tested enough; the results that we have so far are conflicting; therefore, it is more desirable for a child to be adopted by a traditional couple: a man and a woman. No real or imaginated rights of homosexuals can change this fact.

That is an example of emotion-laden theorising that is not the business of the court. The court is supposed to apply rational analysis in the process of judicial review. Speculating belongs to debates in the legislative body.

1. Access is not barred.
2. Not all intimate, exclusive unions are marriages.
3. There is no arbitrary exclusion here, as I stated above. The crux of the problem is that gay plaintiff wish for the definition of marriage to be changed. Homosexual unions are not excluded from the definition in which they, in the very first place, do not fit.
4. Setting the same criteria for all is the base of respect for individual autonomy, and equality under law.
5. Making the criteria more flexible for a certain group of people is in disagreement with respect for individual autonomy and equality under law, and this is what gay plaintiffs demand.

The court supplants logic with emotions. Quoting the things that gay plaintiffs have done to emulate the effect of marriage only serves to prove that the benefits that marriage offers are not inaccessible to homosexual couples. This means that marriage is not a necessary means of obtaining such benefits.

And this shows that the battle is over the very name "marriage" itself. Consequently, the aim of this court ruling is not to protect the rights of some people. That aim is to reshape the definition of marriage.

The purpose of a court is to uphold the law and not to redefine social relations. If any authority at all has such a broad competence, it is only the legislative authority. Supreme Court is not that authority.

Another piece of misinformation. The plaintiffs were in no way denied access to marriage. They were refused marriage license for what was not marriage. In essence, they were refused marriage license for something that was not marriage and did not qualify for marriage license.

Again, lots of fancy phrasing, but little substance. The above paragraph could as well be used to require the state to stay away from marriage altogether and abstain from barring close relatives from marrying each other, or a person with communicable syphilis from marrying a consenting partner. If anything, it yearns for a total lack of restriction in choosing whom to marry.

I agree. But how are children supposed to be born to a homosexual couple? How is legitimacy applicable? If anything, this shows that a homosexual union is substantially different from marriage.

Next, Marshall claims that allowing same sex marriages would improve the conditions of children adopted by such couples... by presumption of legitimacy. But how is legitimacy applicable to an adopted child? If single persons can adopt children, homosexuals will always have an open way of adopting children and raising them in a homosexual household. The fact that the state does not consider it proper to bar adoption by single people does not yet mean that it considers it desirable for children to be raised in homosexual households. Marriage is the optimal setting, as provided in the standing marital laws. The fact that homosexuals go around this law does not mean the law should be adjusted to their wishes. There is an old rule which says that laws should not protect actions that people take to go around the very same laws.

Long does not mean correctly. There is no such civil right as "the right to marry a person of the same sex". In fact, there is no civil right related to marriage at all. Also, the reasons mentioned are far from concrete. Emotions, again.

False. First, there is no right to marry. Second, Marshall creates an artificial construct he terms "the right to choose to marry". That construct is empty. A human life, also, is no less valuable without marriage. Further, not all "intimate and lasting human relationships" are marriages. For goodness' sake, even asexual friendship qualifies for this expression. Avowed or not, whatever is not included in the definition of marriage in standing marital laws is not a civil marriage.

Yes. And since when it is the court's place to decide what government restrictions are "appropriate"?

Yet another false comparison. There is a difference between sexual orientation and skin colour. Skin colours are not deviation from any standard, they are standards in their own right. Sexual orientations other than heterosexual orientation are deviations from the norm.

However, even sexual orientation is not the criterion of division here. The supposed criterion of division is gender. However, it is only supposed. Marriage is not a union from which homosexuals, or same gender people, are excluded. Marriage is a union between a man and a woman, who as a rule can be biological parents, and same sex union does not belong therein. There is no division whatsoever.

Let us reach a bit farther. The very purpose of all marital obligations, protections and benefits is supporting family. That is why we have all these benefits and obligations in place.

Another example of emotional rhetoric devoid of substance or evidence. There is no evidence to support the claim that homosexual households are equally as desirable environments for rearing children. Unstability has nothing to do with that.

Also, it is not the court's business to root out destructive stereotypes

False. There is no such thing as denial of protection across the board to homosexuals. There is no question of a single trait. The matter is meeting the criteria for the definition of marriage or not. Equality is the current state of matters and any change in them would be a deviation from equality. If anything, homosexual couples are denied a claim for unmerited privileges.

Since when do courts decide state policies, let alone hierarchy thereof? The very thought of courts deciding what can "plausibly furthe r" a policy of the state is bizarre and frightening, befitting the world of Kafka's "Process" more than a democratic country.

The best interest of a child calls for according him adoptive parents that meet the criteria and not for declaring them suitable. Also, legitimacy or lack thereof does not apply to adopted children.

How far is the fiction going to progress? "De facto same sex parents"? What is next - "de facto same sex paternal uncles"? The de facto construct is an artificial concept and the best interest of the child requires for him to grow up with biological parents or with a family that resembles a normal family with biological parents that has been lost to the child. Subjecting the child to experiments and political visions of the judges is not in his best interest.

That is because adoption or registering a child born out of wedlock is always a more lengthy process than registering a child born to married parents. There is one more consideration missing here: children are not actually born to two homosexual people.

It is not about children, as I showed above. It is about declaring homosexual union equal to marriage not even in status, but in substance. While the first is achievable, the latter is not, as no declaration can change the substance of anything.

Instead, they attack the very core of marriage: the fact that marriage is between a man and a woman creating a family fit for biologically parenting a child.

The above is politics and not law. There is no place for such rhetoric in a court ruling. All that is not the court's business.

By many people both discrimination against homosexuals, and engaging in homosexual conduct are considered immoral. Outlawing discrimination of homosexuals does not imply approval of homosexual marriage. Also, Judge Marshal again evaluates the good and the bad policies of the state according to his persuasion.

Now, from judge Greaney:

That means exactly that the biological difference between man and woman, making only a man and a woman able to procreate and not two men or two women, is in violation of art. 1.


Therefore, I conclude that the court is taking on itself the role of the legislative body, that it does not apply rational process in judicial review, but instead interprets statutes and other laws contrary to their literal meaning in such a manner as to enforce the Judges' own persuasion of what is proper for the state Legislative to enact and what is not. Also, the court is taking on itself the role of the legislative body in attempting to respond to social changes and political trends. It undermines the marital laws in one place and uses their strength to support its views in another, with no consistency. It ignores facts and the boundaries of physical reality that obstruct its ideal vision of the proper social relations, supplanting also rational, logical inference with emotional invocations and dramatic calls. The court shows little regard for sentiments in the society, distorting the information where those were mentioned. It uses the construct of due process to create new rights rather than protect existing rights, and it shows little regard for existing rights in creating the new ones. Logical arguments, if used at all, are malformed and applied in a misleading manner. Thus, the court goes against both the letter and the spirit of the law it is supposed to uphold. It is also inconsistent with its previous view that political issues are to be resolved by the Legislative and are outside the court's competence, as shown by denying to recognise a fundamental right to assisted suicide and leaving it to the legislative body. That is against the duty of a judge, which is to apply laws according to the will of the people expressed through their representatives in a democratically elected legislative body, whereas in this ruling the court attempts to change the spirit and the message of the law, alongside the literal meaning.

 

A very impressive analysis. However, since it was the Supreme Judicial Court of Massachusetts that made the ruling, I'm pretty sure it will stand the way it is. The legislature tried to get a constitutional amendment to pass which would have retroactively voided all same sex marriages, but I believe it died.

As much as I hate federal laws, I believe it will take a federal law to solve the issue.