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court ruling 'Two Views on Court's Ruling" (2003) presents the differing opinions of legal analysts Douglas W. Kmiec and Alan Hirsh regarding the Massachusetts Supreme Court decision to extend the legal definition of marriage to include homosexual couples. In the section entitled "Judges overstepped role," Kmiec argues that the Massachusetts ruling "tears at the institution of family upon which all else depends." In spite of his being a constitutional law professor at Pepperdine, Kmiec's position is based on opinion and a spurious morality, not on legal fact and precedent. Kmiec also argues that the decision was wrong because it was made by "judges who assume they are wiser than their fellow citizens." Hirsh, however, finds that "legally speaking, the decision in this case is in fact conservative." In his piece "Ruling is conservative," Hirsh anticipates arguments like those of Kmiec, referring to Marbury vs. Madison to note that the Massachusetts Supreme Court did not overstep its role. Massachusetts recently became the first state to allow gays to legally marry and enjoy the full benefits thereof. The decision was and still is immensely controversial, as is evident in the opinion articles of Douglas W. Kmiec and Alan Hirsh. The Massachusetts Supreme Judicial Court decision also sparked a wave of ballot initiatives in other states in the 2004 federal election, all of which were defeated at the polls. Moreover, the Massachusetts decision is unique; although similar decisions were made in Alaska and Hawaii, both states amended their constitutions to reinstate the ban on gay marriage. In 2000, California residents passed Proposition 22, which defines marriage as a union between one man and one woman. The views expressed by Kmiec and Hirsh in "Two Views on Court Ruling" show that the Massachusetts decision was a just one.
Kmiec's opinion is spurious for several reasons. First, the Massachusetts Supreme Court did not overstep its boundaries through the ruling; they were, as Hirsh points out, presenting valid and necessary legal challenges to existing laws. Hirsh states, "The suggestion that a legislature's determinations of public policy are immune from court challenge contradicts doctrine established by the Supreme Court 200 years ago in Marbury vs. Madison." The Massachusetts Supreme Court might have acted boldly but it did so justly and within the boundaries of the law. Moreover, as Hirsh notes, the Massachusetts ruling was based on "the most accepted tools of judicial reasoning -- precedent and analogy." In formulating their decision, the Massachusetts Supreme Court looked to many other similar cases in which states offered to define and re-define marriage. For instance, in 1967, the Supreme Court case Loving v. Virginia reversed the still extant ban on interracial marriage: "The court struck down laws banning interracial marriage saying people should be allowed to choose their marriage partner free from the moral qualms of others." Hirsh notes that the Massachusetts decision basically substituted "the same gender" for "another race," basically establishing through analogy that the ban on homosexual marriages is unconstitutional. Moreover, Hirsh notes that "the Massachusetts Supreme Court appropriately sought guidance from United States Supreme Court decisions, including one in June that struck down an anti-sodomy law in Texas." The Massachusetts decision, like earlier ones regarding interracial marriage, upholds equal protection clauses in the United States Constitution. "The Supreme Court redefined marriage because the definition in Virginia and many other states violated a cherished constitutional ideal: equal protection of the laws," (Hirsh).
Kmiec's second major logical fallacy in his argument "Judges overstepped role" regards the notion that equal protection of the laws, as set forth in the United States constitution, does not apply to gays. His argument is eerily reminiscent of pre-abolition and pre-woman's suffrage days in which blacks and all women were prevented from enjoying the full rights and privileges of citizenship. Kmiec notes, "Accepted principles of equality have long taught that only those similarly situated must be treated similarly." Slavery was supported by this point-of-view. Slavery, and after abolition, segregation, were based on an "accepted principle" that blacks are not to be "similarly situated" to whites and that therefore equal protection of the laws does not apply to them. Similarly, the ban on women being able to vote or hold office was also based on an "accepted principle" that women were inferior, or at least not "similarly situated" to men and were intellectually incapable of voting, let alone participating in politics.
Therefore, the so-called "accepted principles of equality" that Kmiec refers to were certainly not accepted by all persons. Even when they were accepted by the majority, these principles of "equality" were objectively and legally unjust, prejudicial, racist and sexist. Evolving social and political tides around the turn of the century led to the constitutional amendments that expressly stated that African-Americans and women are in fact "similarly situated" to white men and are therefore deserving of equal protection. Such constitutional amendments essentially altered the "accepted principles of equality," for now it would be absurd to prevent a woman from voting. The Massachusetts ruling on gay marriage simply but legally extends "accepted principles of equality" to homosexual citizens. In Massachusetts now, gays must be "treated similarly" because they are "similarly situated."
Kmiec refers to the decision to allow gay marriages as the "Massachusetts aberration," and the "Massachusetts mistake." The author, however, makes another mistake in his argument by declaring marriage to exist solely for the purpose of begetting children. According to Alan Hirsh, the man-woman definition of marriage, based on the idea that marriage must entail procreation, is "empty." No state, according to Hirsh, "conditions marriage on ability or interest in procreation." In reality, many heterosexual married couples consciously and deliberately choose not to have children. Under Kmiec's definition of marriage, these couples would also be constitutionally prevented from being legally married. Kmiec states, "Marriage promotes procreation." Marriage often does entail procreation, but so does any one-night stand of casual sex. Moreover, Kmiec argues that limiting the legal definition of marriage to a union between man and woman "ensures the benefits of child rearing by the distinct attributes of both father and mother." Numerous studies show that children raised by heterosexual couples are not necessarily better off than those raised by homosexual couples. Finally, Kmiec states outright that only heterosexual "intimate sexual activity" is "orderly and socially accountable." What Kmiec defines as "orderly" sex is not entirely clear; nor is his vision of "socially accountable" sexual activities. Clearly, Kmiec's argument is based neither on constitutional law nor on equity but on prejudice. He even contradicts himself, having earlier stated that "reserving marriage to a man and a woman has never been premised on mean-spirited exclusion." Surely the Church's acceptance of slavery was never premised on mean-spirited exclusion either. As Hirsh notes, "Massachusetts trotted out several state interests, including the desire to promote certain moral values and have children raised in an optimal setting. These same interests were present in 1967 when Virginians felt that interracial marriage was immoral and a defective setting for raising children."
Compared with Kmiec's article, Hirsh's is logically sound. Regardless of his personal beliefs on homosexuality in general, he notes that the Massachusetts Supreme Court decision was based on legal precedent and analogy. More than Kmiec, Hirsh appeals to reason and rationality rather than emotionality. Moreover, the Supreme Court of Massachusetts did not overstep its boundaries by the ruling, which is one of Kmiec's central arguments. The judges were not necessarily trying to make new laws so much as they were trying to clarify existing laws and to challenge clauses of exclusion. The job of the Supreme Courts is to determine constitutionality, and that is essentially what the Massachusetts Supreme Court did in its ruling. The Massachusetts decision "extends to gay couples a right that flows out of Supreme Court decisions." Unlike Kmiec, Hirsh does not invoke a concept of…[continue]
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