It's up to people of Massachusetts to decide on marriage

By John Huebscher

According to a story I once read, the late Justice William Brennan was explaining different theories as to how jurists interpret the meaning of the words in the U.S. Constitution. After reviewing several of these theories and the methods they implied Brennan said, "In the end, the Constitution means what five of the nine justices say it means."

Last week four members of a seven member state Supreme Court decided what the constitution of the Commonwealth of Massachusetts means in terms of equal protection under the laws when they ruled on the Massachusetts law that denies same sex couples the right to marry. That decision has ignited a debate over marriage. But it will also renew a two centuries debate over the role of the courts in American government.

Sometimes courts will invalidate a law because it is vague or poorly written. This was not the case with the law defining marriage in Massachusetts. The Court's opinion, written by Chief Justice Margaret Marshall, explicitly acknowledged that the Massachusetts law defining marriage was not ambiguous. Indeed, in describing the statute in question, the Court held, "the only reasonable explanation is that the legislature did not intend that same-sex couples be licensed to marry."

The justices in Massachusetts did not invalidate the law because it was vague. They struck it down because they believed it ran counter to the guarantee in the state Constitution that citizens be treated to equal protection of the law. As Justice Marshall stated, "we owe great deference to legislators to decide social and policy issues, but it is the traditional and settled role of courts to decide constitutional issues."

Almost, but not quite.

The U.S. Constitution, the Wisconsin Constitution, and the laws enacted by our Wisconsin legislature differ in structure, purpose and other important respects. But they have one crucial thing in common. Each begins with the words "We, the people."

This is the ultimate genius of our system of government and ultimately our shield against tyranny or ignorance. For the final authority on all vital questions facing society rests with the entire citizenry, each with the capacity to grasp what Jefferson described as "the laws of Nature and of Nature's God."

No government decision, whether made by the Executive, the Legislature or the Judiciary is final. For the people can undo each one. The people can use the ballot at regularly scheduled elections (as opposed to one-issue recalls) to replace presidents, governors and legislators whose actions they deem unwise or unsound. In some states they can use the ballot to replace justices of their courts.

Where justices are not elected, as in our U.S. government, the people can amend the Constitution when they believe it has been misinterpreted. The 13th Amendment to the U.S. Constitution abolished slavery less than a decade after the Supreme Court ruled that Congress lacked the power to limit slavery in the territories. Several years ago the people of Hawaii amended their state constitution after the Supreme Court in that state issued a decision similar to that made last week by the justices in Massachusetts.

In both instances the people decided that they - not the courts - would determine what their constitution meant.

Now, the people of Massachusetts and their elected representatives will determine what their constitution means as they discern whether to amend it. Over time, it may fall to the rest of us to do the same thing as regards the U.S. Constitution.

And that is how "we the people," acting through the nation's Founders, designed it, Justice Brennan's views not withstanding.

(Huebscher is executive director of the Wisconsin Catholic Conference, the civil arm of the state's five diocesan bishops. Its website is www.wisconsincatholic.org.)