11.20.2003

Roe, the Sequel
WSJ Editorial

Antonin Scalia was right after all. And we don't mean his prediction that the Supreme Court's Lawrence decision this year throwing out a Texas sodomy law would quickly become a vehicle for gay marriage -- which came true this week courtesy of a Massachusetts Supreme Court decision.

We mean Justice Scalia's far more prophetic dissent a few years back in Planned Parenthood v. Casey. Though that case involved abortion, Mr. Scalia's larger point was about the culture wars that were unleashed on the body politic the last time our judiciary presumed to "settle" a contentious social issue that properly rests with the people's elected representatives.

"By foreclosing all democratic outlet for the deep passions this issue arouses," he wrote, "by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish." That is one legacy of Roe v. Wade.

We were reminded of this by Massachusetts Chief Justice Margaret Marshall's 4-3 majority opinion this week defining marriage as an "evolving paradigm" and declaring there exists no "constitutionally adequate reason for denying civil marriage to same-sex couples." Can anyone doubt that the Massachusetts High Court has started another Thirty Years War?

So let's be clear. Notwithstanding headlines trumpeting that Massachusetts has just opted for gay marriage, the people of that commonwealth did no such thing. It is four liberal judges on the Massachusetts Supreme Court who, egged on by well-connected and politically powerful gay rights activists, have imposed their own moral values on the rest of its citizens.

This is no coincidence. Despite Justice Marshall's solemn talk about an "evolving paradigm," most gay rights champions don't believe Americans have evolved that much. And they know they'd have an almost impossible time getting this new "paradigm" past most state legislatures. In other words, it's precisely the American public whom they most fear and whose voice they want to keep out of this process.

So they've done what liberals so often do: Provoke some state court decisions in hopes that the U.S. Supreme Court will finally do the legislating for them. This sure beats having to persuade your fellow Americans through democratic debate. Did we mention that Justice Marshall's very first legal citation, in the second paragraph of her decision, is Lawrence?

The tragedy here is that the first casualty of an all-or-nothing court clash over "rights" is any kind of reasoned debate or workable social consensus. American attitudes toward homosexuality are plainly changing, and many companies, including the one we work for, already extend full benefits to same-sex partners. We believe that this signals most Americans are at least open to persuasion about increasing the rights of gay Americans, including but not limited to marriage.

But what the Massachusetts High Court gave America in Goodridge v. Dept. of Public Health is not an argument, much less an open debate. It is instead a unilateral declaration that the assumptions and values that have defined one of civilization's oldest and most vital institutions -- marriage -- should be tossed out the window. And if you don't agree they're going to force it on you anyway.

Millions of Americans who have other views are not going to accept this moral diktat, and so once again our politics will be polarized by the cultural furies. When the fighting starts, let's all be clear about who fired the first shot.


My take:Watch quickly for Senate Republicans to use this as a rallying point for why nominees currently being Borked need up or down votes. The Democrats should tread softly and be careful what they ask for. A renewed interest in a judiciary that relies on Textualism, Originalism, Constructionism, etc is exactly what they don't want, but may be exactly what they get as a result of this opinion.

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