The logical extension

Jeff Jacoby, token conservative columnist at the Boston Globe, writes about what we can expect in the future considering recent court decisions designed to provide new rights to homosexuals.

He says that in light of the US Supreme Court’s Lawrence v. Texas and the Mass. Supreme Judicial Court’s Goodrigde v. Department of Public Health, just about anything you can imagine is up for grabs. In Utah, polygamy is explicitly forbidden by the state constitution. But Jacoby says that the twin court decisions, taken as written, would make that constitutional provision moot.

Last June, in Lawrence v. Texas, the US Supreme Court overturned a Texas antisodomy law on the grounds that the Constitution protects “an autonomy of self that includes freedom of . . . certain intimate conduct.” Five months later, guided in part by Lawrence, the Supreme Judicial Court of Massachusetts ruled that the age-old ban on same-sex marriage was “incompatible with the constitutional principles of respect for individual autonomy.” The essence of civil marriage, said the SJC in Goodridge v. Department of Public Health, is simply “the exclusive and permanent commitment of the married partners to one another.”

Or to put it more simply: “...the only people entitled to decide whether an intimate relationship is meaningful enugh to deserve legal protection are the parties to that relationship themselves.” So someone who wants more than one spouse—if all the parties are amenable—should be allowed to, under the legal precedents. Same for someone who wants to marry his sibling or parent. Or his dog, for that matter.

Of course, what we’ve learned in recent years is that the law and precedents is whatever the courts say they are. There is no obligation to internal or external consistency. The courts would be quite willing to create the legal obligation to allow gay marriage and then forbid those rights, under the same conditions, to other politically incorrect groups.

What should be happening is that legislators should be fulfilling their constitutional duty as a check and balance against the power of the courts. Instead, they have punted. By their spineless refusals to assert the authority, they have allowed the courts to rule by fiat. They are quite comfortable allowing the courts to make the hard decisions, then they can just claim to be only able to follow those dictates. We’ll see it with a civil unions bill in Massachusetts (which is the least we can expect to happen) and we saw it with campaign finance reform. In the latter, the Republican Party was opposed in principle to the law as written, but congressional leaders and W decided to allow it through, expecting the Supreme Court to do their job and overturn it. Oops! Where did our free speech go? I expect that very soon we’ll be saying that same thing in a different vein: Oops, where did the family go?