I was just reading the Massachusetts Constitution, regarding judicial powers and noticed that the document explicitly discusses the judiciary’s powers concerning marriage, in Chapter III, Art. V: “All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.” Now, since I don’t have a law library, I can’t be sure, but it is my understanding that the “other provisions” were made almost immediately after ratification of the constitution in 1780, to include only matters of divorce.
In other words, if I understand it correctly, the judiciary was never given jurisdiction over “causes of marriage,” which leads me to believe that right here we have all the proof we need that the Supreme Judicial Court engaged in an unconstitutional breach of its powers by changing the definition of marriage to include gay couples. If that’s true, then the solution is clear: Gov. Mitt Romney has simply to declare the judiciary has overreached into executive powers and issue an executive order stating to that effect.
Of course, it is not a groundbreaking idea. Others have used other criteria to conclude that the court overstepped its bounds. The problem is not whether or not it has done so, but whether the rest of our so-called political leaders are willing to do the difficult thing and defend the rule of law. If they don’t, they will have effectively ceded their governing powers to the judiciary and they have become nothing more than a rubber-stamp on their decisions.