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To: seamole
The central claim made by appellants is that the Goodridge decision erroneously interprets the Massachusetts Constitution and state law by appropriating to the court authority reserved to the legislature and, in consequence, violates article IV, § 4, of the United States Constitution guaranteeing to the states a republican form of government. For much of its history the Supreme Court has treated almost all claims under article IV, § 4, as non-justiciable political questions

Goodridge does not establish permanent martial law or declare the Commonwealth a monarchy; and it cannot plausibly be argued that every disagreement about allocation of power within a state government--even a very important disagreement--raises a question under article IV, § 4.

The claim here is that judicial activism brings into being a de facto kritarchy--"rule by judges."

The problem is that, if a Federal court overturns the Supreme Court of Massachusetts on these grounds, it would implicitly call into question Federal judical activism, as well.

In my opinion, neither the appeals court, nor SCOTUS, will want to open this can of worms.

229 posted on 05/16/2004 4:50:59 PM PDT by TigerTale (From the streets of Tehran to the Gulf of Oman, let freedom ring.)
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To: TigerTale
One thing I've noticed the lack of on this thread--why has no one questioned the tactic of waiting until two business days before May 17th to take this through the Federal court system? I mean, this thing's been brewing for six months, if there was a Federal issue here, why didn't somebody make a case out of it two or three months ago?

My answer to that question is this: The people who oppose gay marriage know that the imminent "sky is falling" tone of their pleadings is the best thing they've got going for them. Upon careful deliberation, the Federal court system will leave Massachusetts law alone, and leave it to the people of that state to deal with the issue in their Constitution. In fact, the very prescence of a Constitutional Amendment to change gay marriage into civil union shows that the process is working, and that there is no need for the Federal courts to interfere in it.

230 posted on 05/16/2004 5:59:31 PM PDT by hunter112
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