The EU

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Friday, July 23, 2010

Goodbye to Chief Justice Margaret Marshall

Here is the Boston Globe article on Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall stepping down.

The story of why the resignation is one that is full of love and commitment and should be an inspiration for any of us.  Ms Marshall is married to Reporter and Columnist Anthony Lewis (Two Pulitzer Prizes).  Now 83, Mr Lewis has Parkinson's Disease.  It is a terrible disease and the victim has to fight, fight, fight.  And, he or she needs the loving support of family and friends.  Ms Marshall's decision is an inspiration.

Regarding the career of Chief Justice Marshall there is much focus on the Goodridge v Department of Public Health decision.  This was the decision that brought same-sex marriage to Massachusetts.

The Goodridge decision surprised me on two counts.  The first was that the Supreme Judicial Court did not just invoke the First Amendment of the US Constitution and say that "marriage" is a religious issue and that the interest of the Commonwealth of Massachusetts was in recording contracts.  Given that the Chief Justice had some reputation for looking to legal decisions overseas to influence her, I thought the German example would have been excellent.  When I was stationed in Germany in the late 1960s, if one wished to marry, one went to the local City Hall and pulled a license and got married.  If one wished to be married in a religious ceremony, one went to the local City Hall and pulled a license and got married at the local City Hall and then went to a Church for a Church wedding.  However, the local "Civil" wedding was what was needed by the Government.

Thus, it seemed to me that Ms Marshall should have said, we are talking about registering contracts and the state has no interest in the sex of the contractees.  Thus, all couples, to have a contract, must go down to their local City Hall and raise their hands and have their contract authenticated.  And, the reason is, at some point the State might have to dissolve the partnership.  And there are tax issues and in some cases responsibilities for raising minors.

The Opinion says:
Here, no one argues that striking down the marriage laws is an appropriate form of relief. Eliminating civil marriage would be wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society.
But, making marriage strictly a civil affair would be consistent with this move.  Perhaps people are put off by the idea of not using the word marriage in the legislation, but the point is that marriage seems to drag religion into the discussion.  This, in turn, violates the First Amendment of the US Constitution.

The second thing that puzzled me is the Supreme Judicial Court saying it is OK for the Legislature to prohibit certain forms of marriage, as long as it does not mess with same-sex marriages.  It does this at Footnote 34:
Similarly, no one argues that the restrictions on incestuous or polygamous marriages are so dependent on the marriage restriction that they too should fall if the marriage restriction falls.  Nothing in our opinion today should be construed as relaxing or abrogating the consanguinity or polygamous prohibitions of our marriage laws.
Frankly, given the multicultural nature of our society, this footnote seems to make the whole decision either thoughtless or corrupt.

That said, I still have the right to write this blog post, so the fundamental freedom of speech appears to remain intact, as does my freedom of religion and freedom of assembly and freedom to petition the Government.

Regards  —  Cliff


Craig H said...

well said. i'm actually not as offended by the footnote, and i actually would describe it as thoughtful and not thoughtless. (nor corrupt). the knee-jerk can of worms wished to be opened by opponents of same-sex unions are exactly these two examples--incest and polygamy. it's pretty clear the court wanted to head them straight off at the pass. (clumsy, maybe, but not thoughtless).

i would be comfortable with logic focusing on the civil union as a two-party-only partnership (hence, eliminating polygamy as a legal condition) and, well, as for incest, that's trickier. legally, i am not comfortable with denying siblings the right to contract a union, just like everyone else. (for parents, the parenting and adoption laws and rights should be sufficient, and if they want to complain that's "separate but equal", well, then they can). the prohibition, to my mind, must come in a specific statute unrelated to the civil partnership statute that focuses on the impropriety of sexual conduct between immediate family.

C R Krieger said...

I agree with Kad about not marrying within a certain degree of sanguinity, or familial relationship (to include adoptions).  This is to protect family relationships.  I understand the fear of birth defects has been a bit overdrawn.  My view is second degree, but others have narrower views.

That said, I was struck by the degree of injustice in a case in Michigan that Columnist Jeff Jacoby wrote about several years back, where a brother and sister, put out for adoption as children, met and fell in love and married and were later jailed for it.

As for polygamy, I am against it.  The question, however, is if my preferences should determine how others act?  As we begin to broaden our understanding of civil unions and of the acceptance of other cultures, why should the courts favor one cultural understanding over another?  Frankly, I have what I think are good reasons for so thinking, but once we start down the road of changing society, we need to have some common understanding of what the rules are.  The justification can not be because my circle of friends like it that way.  When we squeeze out the cultural preferences of others we should have some good general guidelines and we should start talking about them now, not later.  But, especially we should not be into backing in our justifications.

With some 2% of our population being Muslim and a fair percentage of those being from cultures that accept a man having more than one wife, this question is, at some point, going to raise its head.  Our answer should not be that because we forced the Mormons to give it up we can force anyone.  And, I sometimes wonder to what extent there is current polygamy in our nation, hidden from view and unprosecuted.  Is polygamy today like sodomy was?

Regards  —  Cliff

C R Krieger said...

These Cultural things can be complicated.  "Cultural Defense Accepted as to Nonconsensual Sex in New Jersey Trial Court, Rejected on Appeal".

Regards  —  Cliff