Dispatches from the Creation Wars

The Supreme Court today refused to hear a case asking them to overturn the Massachusetts State Supreme Court decision on gay marriage. Now one might wonder why on earth someone would try to appeal a state supreme court decision based solely on provisions in that state’s constitution to the US Supreme Court. One would be right to wonder. Just look at the argument the plaintiffs made:

Critics of the November 2003 ruling by the highest court in Massachusetts argue that it violated the U.S. Constitution’s guarantee of a republican form of government in each state. They lost at the 1st U.S. Circuit Court of Appeals in Boston.

Their attorney, Mathew Staver, said in a Supreme Court filing that the Constitution should “protect the citizens of Massachusetts from their own state supreme court’s usurpation of power.”

Federal courts, he said, should defend people’s right “to live in a republican form of government free from tyranny, whether that comes at the barrel of a gun or by the decree of a court.”

I’m guessing it took the justices longer to stop laughing than it did to vote not to hear the case. That is without a doubt one of the dumbest legal arguments I’ve ever heard. Pure majoritarianism, something the Constitution is entirely opposed to. By their reasoning, the US doesn’t have a “republican form of government” since the courts sometimes rule in ways the majority doesn’t like. How did this guy get a law degree, for crying out loud?


  1. #1 Jason Kuznicki
    November 29, 2004

    Heck, I could make a better “republican government” argument than this one:

    –Families are the basis of republican government. This decision attacks the family and therefore attacks the government of the state.

    Curiously, I haven’t heard this argument being used yet. But I’ve got a fairly decent rebuttal to it, and I will gladly share it with the world when the time arrives.

    (Rubs hands together, grins deviously…)

  2. #2 Jim Anderson
    November 29, 2004

    I’m first to say it: damned non-activist judges!

  3. #3 Reed A. Cartwright
    November 30, 2004

    I guess homophobia would be required feature of a Republican government.

  4. #4 raj
    November 30, 2004

    This case was a hoot. The nuts from Florida, of all places–carpetbagger revenge, obviously–brought suit in Massachusetts, claiming that the MA SJC decision was a violation of the Federal Constitution’s provision that provides that the Federal Government will guarantee each state a republican form of government. According to the Florida plaintiffs, the MA SJC decision was a reflection of the usurpation by the MA SJC of–something.

    I’m sure that, if the FL plaintiffs had been around in 1783, they would have also objected to the fact that the MA courts declared that slavery was unconstitutional in MA, in view of the newly enacted 1780 state constitution.

    It is unfortunate that it is unlikely that attorneys’ fees would be recoverable against the FL plaintiffs. If they were, perhaps wackos like the FL plaintiffs would think twice about filing silly suits like this one.

  5. #5 carpundit
    November 30, 2004

    Aren’t these the same people who rail against the federal courts when they stop state judges from doing things they support? Like, say, erecting monuments to the Ten Commandments in the courthouse rotunda.

    They only like the courts when the rulings go their way. What do we call that? Oh yes, hypocrisy.

    -From Massachusetts, The Wedding State.

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