“Read what they write about the Canadian court. Go look at that ruling in the newspapers — see how that court ruling changed the law and started same-sex marriage in Canada.”
Another reason the decision was illegitimate on its face: the citation of a foreign court’s ruling as precedent by which to interpret the Constitution of the State of Massachusetts.
I agree with Huckabee on this point, referring to federal judges:
“Any federal judge who uses some international law as a precedent to make a court decision, ought to be impeached.”
http://commentisfree.guardian.co.uk/angelia_wilson/2007/12/president_huckabee_hope_and_le.html
Notwithstanding the current political contest, the issue of the use of foreign courts is much more nuanced and complicated than a sound bite can capture.
I believe the court was wrong in this case. Further, precedence is often just a way to pass off your decisions on someone else.
But given that both Canadian and American law both have some foundation in the concept of British common law, it makes sense to look to how other learned scholars deal with matters of common law when making decisions.
Further, in this case they did not use the Canadian court to interpret the Mass. constitution. They had already determined that the constitution required gender equity. The question they were determining was how they could justify reinterpreting a law already on the books.
They happen to like the argument the Canadian court used on the exact same issue, namely that the legal description of marriage was not debated and explicitly determined by the state legislature, but was simply taken in toto from the common-law definition — and therefore, if “common law” were to change over time based on constitutional perogatives, that change would apply to laws which used the common-law language.
Thus, they could say that the Mass. legislature never explicitly determined they wanted only opposite-gender marriage — they simply wanted common-law marriage, which the courts determined included same-gender relationships under the Mass. constitution.
I happen to think that their particular choice was bad. Plus, I think they left an opening for the legislature to “fix” the problem by restating marriage as between only those of opposite gender, thus proving to the court that the legislature INTENDED that interpretation.
Then the courts would have had to rule based on whether the state legislature provided a reasonable government purpose in restricting marriage in that way.
Of course, the legislature had no intention of doing anything — they supported same-sex marriage, and knew they didn’t have to take ANY action for that to happen, as the court had already made that determination.
So I agree with you that the decision was illegitimate. Citing Canadian law does not itself make the ruling illegitimate, but the assertion that legislatures never intended to restrict marriage to opposite-gender relationships was a fabrication to do what they wanted to do.
And they got away with it because the legislature wanted it.