Judicial Activism Knows No Borders

Same-Sex 'Marriage'

By Chuck Colson, Christian Post Guest Columnist Friday, June 01, 2007

Three years ago, Fred Davie and Michael Adams were "married" in Lowell, Massachusetts, following that state's Goodrich decision, which created a right to same-sex "marriage." But that didn't settle the matter for Davie and Adams.

That's because, like many other couples who availed themselves of the Goodrich decision, they aren't residents of Massachusetts. They live in New York, whose highest court explicitly declined to follow the Massachusetts court's example. They ruled that marriage was a matter for the state legislature.

So that means that the pair isn't married, right? Well, not necessarily.

Last year, the Massachusetts court ruled (based on a 1913 law) that the state could deny marriage licenses to out-of-state couples if their marriages were "expressly prohibited" in their home state.

Connecticut, Maine, Vermont, and New Hampshire, the court ruled, had such "express prohibitions." However, the court said that it wasn't sure about Rhode Island and New York. So it then sent the case back to a state judge in Boston.

Last fall, Superior Court judge Thomas Connolly ruled that Rhode Island didn't "expressly prohibit" same-sex "marriage," so same-sex "marriages" between Rhode Islanders in Massachusetts were valid. To support his ruling, he cited the absence of a "constitutional amendment, statute or controlling appellate decision" that "explicitly deems void or otherwise expressly forbids same-sex marriage."

Of course, New York has a "controlling appellate decision." The issue is for the legislature. So that means that Davie and Adams aren't married. Right?

Well, wrong again. The New York ruling made things difficult, but Judge Connolly rose to the challenge. Last week, he ruled that New York only "expressly prohibited" same-sex marriages as of July 6, 2006, the day of the ruling. Incredible.

Since Davie and Adams were "married" before July 6, 2006, their Massachusetts marriage was valid even though same-sex "marriage" is against the law in New York.

Got that? The problem is the Massachusetts court's "expressly prohibited" requirement. This makes its professed desire not to meddle in another state's marriage laws a sham. What Judge Connolly did was exactly that. He decided whether and when Rhode Island and New York "expressly prohibited" same-sex "marriage."

Never mind that until very recently no state would have ever thought to "expressly prohibit" same-sex "marriage"; the idea was literally unprecedented. Now, they must rewrite their marriage laws or risk a Suffolk County judge in Massachusetts doing it for them.

Of course, any such preventative measure by Rhode Island or New York will almost certainly be portrayed as an exercise in "bigotry" or "homophobia." The attempt to retain control over its marriage laws will be called "provocative" and "unnecessary."

Michael Long rightly disagrees. Long, who heads New York's Conservative Party expects that, as a result of Connolly's ruling, New York will have to revisit the same-sex "marriage" issue. He's right. Some of the estimated 170 New York couples covered in the ruling have already promised to "put it into practice and see what happens."

This matter will never be settled until we enact a federal marriage amendment to ensure that marriage is reserved to one man and one woman. Then the U.S. Constitution will make the issue expressly clear—clear enough even for these Massachusetts judges.

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From BreakPoint®, May 30, 2007, Copyright 2007, Prison Fellowship Ministries. Reprinted with the permission of Prison Fellowship Ministries. All rights reserved. May not be reproduced or distributed without the express written permission of Prison Fellowship Ministries. "BreakPoint®" and "Prison Fellowship Ministries®" are registered trademarks of Prison Fellowship Ministries