Massachussetts Supremes to Reconsider Gay Marriage

Mass. Supreme Court To Hear New Gay Marriage Appeal (

In what is expected to be the last gasp of gay marriage foes in Massachusetts the state’s highest court will hear a challenge to the court’s ruling that legalized same-sex marriage. Oral arguments will be heard in April. Last May, days before the Supreme Judicial court ruling allowing gay marriage was to go into effect, the Catholic Action League and the Thomas More Center sought to have the ruling delayed. The two groups, and other conservatives who entered the case argued that the court should suspend its ruling until the voters had a chance to decide the outcome of a proposed constitutional amendment that would ban gay marriage.

The legislature has since passed the amendment, but it must get approval again in this session of the legislature before going to voters in 2006. A vote by lawmakers, expected this spring has now been put off until fall and recent polls show that the amendment is not likely to get past the legislature or get to voters. In May, Justice Roderick Ireland refused to issue a stay on the start of gay marriage and the decision was appealed.

The announcement that the full court would hear the challenge was greeted by conservatives but dismissed by the gay legal group that won the marriage decision. “[This] case represents perhaps the final loose end that requires clean-up in the aftermath of the desperate efforts to undermine the Goodridge decision,” said Gary Buseck the Legal Director of Gay & Lesbian Advocates & Defenders.

via Michael Demmons, who wonders “why is it judicial activism when gays and lesbians use the courts, but not when conservatives use the courts?”

Presumably, the answer in this case is that the Massachusetts SC overturned an understanding of marriage that predates the existence of the Republic by centuries and the expressed will of the people as expressed by their legislature via a reading of the Massachusetts Constitution that had theretofore been considered absurd. Indeed, that rather defines “activist.”

Still, it appears a moot issue. I can’t imagine the Massachusetts supremes are going to overturn their own ruling at this stage. Once people get used to the idea of gays marrying, an amendment to the Commonwealth’s constitution is also exceedingly unlikely.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Michael says:

    Well, just because a definition of something is an understanding that pre-dates the existence of anyting is not a reason to call overturning it “judicial activism.”

    I mean, the definition of marriage in the Arab world has been pretty much, “men own women” for thousands of years. Many men in the Arab world believe this, and I’ve seen many many women in the Arab world who balk at changing the status quo. If it came down to a 50% + 1 majority that believed this, would it mean we should keep it that way?

  2. James Joyner says:

    When major policy changes are enacted by a court, especially when it overturns longstanding custom, it’s considered activist. Paul Johnson at Auburn provides a definition that’s as good as any:

    The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges’ own considered estimates of the vital needs of contemporary society when the elected “political” branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs.

    “Activist” isn’t necessarily the same as “wrong.” I would argue the Court in Brown was “activist” in the sense that, even though their interpretation of the 14th Amendment was dead-on, it violated an understanding that was nearly a century old.

  3. Lt Bell says:

    It is merely another religionist concept that courts are “activist”.

    Our country is not based on the bible but the constitution,
    “all men are created equal” even Gay men.

    Look to how the religio-facists treat the word “Liberal” for greater insight.

    Oh! And lets all pray for Rapture

  4. McGehee says:

    It is merely another religionist concept that courts are “activist”.

    Dumbbell, that is without a doubt the stupidest thing I’ve ever seen you say. If you’ve ever surpassed it, I thank a merciful God that I haven’t seen you do so.

  5. bryan says:

    Perhaps it’s activist because the Supreme Court basically *ordered* the legislature to do something it had no intention of doing. In this instance, the court acted as a sort of “super legislature.”

    That’s activism.

  6. Just Me says:

    Also, in the Mass case it is hard to say it wasn’t activism, since they basically dictated what the law should be, the courts usually indicate where the problem is, and leave it up to the legislature to develop the solution-look at the cases on homosexual marriage in Vermont and Mass, and notice the difference.