Professor Hadley Arkes of Amherst College is a Minuteman riding to the defense of life, liberty and the pursuit of happiness. His previous brainstorms produced the Defense of Marriage Act and the federal law against partial birth abortion. Now Professor Arkes advises the Massachusetts legislature to recover its manliness and take a lesson from Lincoln’s response to the Supreme Court’s Dred Scott decision:
It is not enough to put off for two years a constitutional amendment. There are things to be done even now. The governor seems to be studying again the lessons taught by Lincoln on the limits of the court and the constitutional responsibilities of the political branches. As Lincoln reminded us, the executive and the legislature could respect the disposition of any case in regard to the litigants, but they may not be obliged to accept the principle articulated by the court. The court might issue injunctions to registrars throughout the state, ordering them to give marriage licenses to people of the same sex.
But the constitution of the state is clear that the laws on marriage belong mainly in the domain of the legislature, and the legislature has the decisive authority to determine the terms on which courts may issue injunctions. Exercising that power in the past, the legislature had diminished the authority of the judges to intervene in labor disputes, and leap in with injunctions to break strikes. By any reckoning, the laws of marriage would be at least as fundamental as the laws on labor and servants. The powers are there to be used. The main question then is whether the legislature of Massachusetts, happily composed as it is of members drawn from both sexes, can summon either the testosterone or the simple nerve to take their responsibility, and to vindicate “the right of a people to govern itself.”