Jewish World Review July 11, 2006/ 15 Tamuz, 5766

Wesley Pruden

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No orange blossoms, just more lawyers | The Supreme Court follows the election returns. Everybody knows that. What we didn't know until now is that sometimes the little supremes read those returns, too.

The Supreme Judicial Court in Massachusetts ruled yesterday that the people do, after all, have a say on whether to overturn thousands of years of law, custom, tradition and precedent to allow men to "marry" men and women to "marry" women.

This follows a decision by the state Supreme Court in Georgia to reinstate a constitutional ban on "gay marriage," which followed by several hours a ruling by the highest state appeals court in New York to uphold a prohibition of same-sex unions. A state appeals court in California is considering whether a lower court erred in holding that bans on such "marriages" violate state and federal constitutions.

These are parlous days for the idea that marriage, as we and our ancient ancestors have known it, can be extended to combinations once only fantasized. Judges, who are notoriously eager to meddle in things that are none of their business, are finally cautious. Some of the judges are even showing humility, one of the most attractive of all human qualities but one neither nurtured nor encouraged in our judiciary. H.L. Mencken once suggested that 10 percent of the judiciary be marched to the gallows annually in the belief that such legally sanctioned public hangings would encourage restraint, modesty and meekness among the survivors.

Somebody in Boston is getting the message, because the Massachusetts court was unanimous in retreat from its earlier mischief in ruling that same-sex "marriage" is a constitutional right. Naturally the learned judges could not bring themselves to say they were in any way reversing course, but it's obvious to everybody else that this is a humiliating climbdown.

"The underlying substantive law is simply changed to reflect the present intentions of the people," the court said of a prospective constitutional amendment, "and that new law will be applied thereafter in any subsequent case or cases." The judges do not address whether same-sex "marriage" is right or wrong, having made their warm and fuzzy feelings clear earlier. The ruling merely clears the way for the state legislature to put the question to the voters of Massachusetts once it is approved in two consecutive legislative sessions. One justice, in a concurring opinion, wanted to get it on the record that his heart is in a dark place where his head would never go. "The only effect of a positive vote [in a referendum] will be to make same-sex couples, and their families, unequal to everyone else," wrote John M. Greaney. "This is discrimination in its rawest form." This may be, as the learned Blackstone says, "the only effect" of such new law. But it's a powerful effect. Such an amendment would send a powerful message to mischief-making judges not only in Massachusetts, but beyond: "Leave well enough alone already."

Proponents of abandoning law, custom and tradition, having imagined they were sniffing orange blossoms only to discover it was yesterday's garbage, retreated quickly to sullen rhetoric. Defenders of traditional marriage were denounced as bigots, homophobes, racists and maybe even nativists, know-nothings, Christianists and Ku-Kluxers.

So the struggle proceeds. Voters in 20 states have approved ballot measures protecting the definition of marriage, and five additional states will put such propositions on the ballot in November. These protections are routinely approved by margins of 60, 70 and even 80 percent. Brighter lights among the same-sex "marriage" advocates suggest that the campaign for "gay marriage" should move from insult and invective, from the judicial to the political, and this means a long, patient campaign to persuade the bigots, racists, nativists, Christianists, etc., to modify their most fundamental beliefs about their most intimate instincts.

Our French friends don't care what you do as long as you pronounce it correctly, and there may be a lesson there. The gay blades might try starting their own custom and tradition, taking care not to call it marriage. They could concoct their own poison.

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JWR contributor Wesley Pruden is editor in chief of The Washington Times. Comment by clicking here.

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