Judicial Activism on Same-Sex Marriages

Equal protection is a principle that works in tandem with the public interest and the public welfare as against the police powers of the State to regulate and sanction civil rights and the activities of men in an organized and civilized society. In Goodridge v. Department of Public Health, the Supreme Judicial Court of Massachusetts has ruled that the existing statutes on civil marriages and the grant of licenses preclude same-sex couples (2003).

Consequently such exclusion does not coincide well with the current and evolving community standards favoring equality among citizens at the instance of their sexual orientation. In the same breath, the Court sought a revision of the statutes to conform to its decision striking the marriage licensing statutes as insufficient if not pernicious to the spirit and tenor of the constitution viz. equal protection, thus invalid.

It is a decision which in all respects smack of the brand of judicial activism granted to the courts by way of judicial review in the pursuit of protecting and upholding the inalienable rights of citizens to equal treatment and substantive due process. In the interpretation of the State laws drafted and enacted by the legislative branch of government the courts are empowered to determine their meaning according to the ordinary and approved usage of the language attributing to the doubtful ones the sense from which may be understood from reading every other provision as a whole (Goodridge v.

Department of Public Health, 2003). Courts may strike down a law if from a challenge the same is found to be repugnant to or at least not in consonance with the supreme clauses of the Constitution. The case at bench deals with the issue whether or not same sex marriage as a matter of civil right is allowed or would be okay under the tenets of equal protection or the “equal treatment of men and women as individuals under like circumstances and conditions both as to privileges conferred and liabilities enforced” (University of California v. Bakke, 1978).

The Supreme Court invariably held that the classification is suspect under the doctrine of the equal protection and as such after close examination was deemed invalid. In brief, petitioners challenge the statutes pertaining to the grant of marriage license since they were denied one by the State solely on the basis of their sex and sexual orientation (Goodridge v. Department of Public Health, 2003). They argue that they have perfunctorily met the requirements provided in the grant of licenses but still they were not given any by the State.

As such, they are in danger of suffering an irreparable injury brought about by the evil of discrimination and prejudice of the government against people who prefer same-sex marriage rather than the customary man and women default rubric (2003). Precisely because the State refuses to grant them a marriage license they are likewise unable to marry and reap the benefits of the civil union. Indeed a denial of the license is ipso facto tantamount to a denial of marriage for the petitioners (2003).

On this point, petitioners fear that if they are not allowed the right to marry much less granted the license to marry, they shall constantly suffer the stigma of illicit relationships and unjustly be burdened with the complex and manifold requirements, going through a barrage of legal processes to circumvent the laws of marriage and family life in civil partnerships, which would otherwise be avoided effectively and completely, in swift and bold strokes, if they were treated equally and alike as with heterosexual couples in marriage (2003).

To underscore this point of the constitutional challenge the Court avers that marriage is a social institution. In the same vein, it is a contract in form but in essence it is an institution of public order, founded on custom and morality and it is a contract sui generis which cannot be compared to any other contract (Jaff, 1988). It is a convention of a social character based on the consent of the parties which unites a man and a woman in a juridical act for the purposes of procreation and the other and moral ends “necessary for the development of personality which also gives rise to a plenitude of obligations and rights” (Goodridge v. Department of Health, 2003).

It is civil in character because it is established by the States independently of its religious aspect, and “it is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty not commercial and social projects” (Griswold v. Connecticut cited in Goodridge v. Department of Public Health, 2003). Likewise, it is an institution of public order or policy governed by rules established by law which cannot be made inoperative by stipulation of either party to the marriage.