Justice rests not on hope
by Eileen McNamara, Globe (op/ed) Columnist | Boston Sunday Globe, April 2, 2006
. . . snip . . .
In upholding the right of Massachusetts officials to deny marriage licenses to nonresident, same-sex couples, the state's highest court gave greater weight to the discriminatory laws of other states than it did to its own landmark ruling in 2003 declaring civil marriage a fundamental constitutional right, regardless of gender.
"A principle, inconsistently applied, is not a principle at all," wrote Associate Justice Roderick L. Ireland, who, alone among the seven justices on the SJC, acknowledged in his impassioned dissent the political animus behind the resurrection and selective enforcement of an abhorrent state statute with roots in the nation's racist past.
His opinion got scant attention last week,
but one inevitable day, when the right of homosexuals to full participation in the civic life of this country is universally established, legal scholars will find the roots of social change as much in Ireland's stinging dissent as they will in the stirring language of Chief Justice Margaret H. Marshall in Goodridge v. the Department of Public Health.The 1913 law upheld by the SJC last week prohibits the issuance of marriage licenses to couples that would be barred from marrying in their home states. The original targets were interracial couples seeking to evade the miscegenation laws common in other states but never adopted in Massachusetts.
Gay is the new black. . . . snip . . .
. . . more at . . .
http://www.boston.com/news/local/articles/2006/04/02/justice_rests_not_on_hope/(bold-faced type emphasis added by TaleWgnDg)
Yes, Associate Justice Ireland, who is the sole juvenile law/family law expert on the SJC bench, is correct. And, his legal theories in his dissent may be used, I believe, to over-turn this most recent SJC ruling on same-sex marriage. However, it's premature
at this time. My reasonings are articulated elsewhere in
another DU thread.
Neither McNamara or Justice Ireland are applying realistic politics in this time of religion-into-law uber-rightwing social stances across America that would be detrimental to the same-sex marriage goal. And, that goal is universal same-sex marriage in America, not merely Massachusetts forcing its law upon the rest of the country. What a backlash that would make, ready for further extremist campaign fodder!
I am not saying that sitting justices should apply politics in their legal reasonings, for they should not do so. Justice Ireland is correct in not doing so. However, McNamara's national political shortsightedness is inexcusable. No matter how much one may agree w/ Justice Ireland's well reasoned dissent, I believe as do many other lawyers believe that it would impede -- not help -- the goal of achieving universal same-sex marriage in America
at this time. Take note, please, that the operative words are "at this time."