Shoftim; Deuteronomy 16:18-21:9

In recent weeks and months there has been much criticism of certain judges and the judiciary as a whole. Especially in light of recent rulings allowing marriage for same-sex couples, those opposed have hammered the message that “activist judges” have taken the bull by the horns in forcing marriage for gay people on an unwilling and unsupportive public.

But what are judges supposed to do—if not settle disputes and disagreements and in the case of the Supreme Judicial Court of Massachusetts, interpret the state Constitution? Are these judges activist judges? Or are they doing their job without regard to favoritism?

Our Torah portion this week, Shoftim, speaks to the appointment of magistrates and officials and their obligations to govern the people with “due justice.”

This principle of fairness and justice whether from the Biblical period or now is no less important. Judges must do their job without regard, says the Torah portion, to favoritism and also without taking bribes. As the parasha says, “Bribes blind the eyes of the discerning and upset the plea of the just.” This was true then as it is true now.

The most famous principle as outlined in this week’s portion—is “Justice, Justice, shall you pursue.” This oft quoted verse speaks of Judaism’s deep love for righteousness and fairness in all things. God made all human beings in the Divine Image. Thus the pursuit of justice not only shows a devotion to fairness but points to a love of God. When judges adjudicate fairly and honestly and seek out justice, they raise up the level of discourse and proclaim an equity that has healing power not only in the immediate case but resonates throughout the world.

In our American society, our democracy prides itself on the concept of majority rule. And our legislative bodies certainly are built on that model. But the judicial branch of government comes along to precisely to balance the legislative branch and keep the “tyranny of the majority” from taking away precious rights ceded by our Constitution.

This is the case in Massachusetts. These are not activist judges—rather they are justices who are protecting equality for the citizens of the Commonwealth of Massachusetts against the tyranny of the perceived majority. Because polls taken immediately after the decision was rendered show that a majority of the electorate in Massachusettes agreed with the Supreme Judicial Courts decision in Goodridge v. Department of Public Health.

Thus the decision that was rendered on November 18, 2003, when a 4-3 majority of the court held the marriage laws to violate constitutional guarantees of liberty and equal protection is a decision that pursues justice even if the face of governmental activism. Even if Govenor Mitt Romney disagrees, justice must be done. This Court was pursuing justice, even when a vocal group of citizens opposed their decision. And that is what a good judiciary must do. Pursue justice. Just as the Torah describes. We applaud their decision and work for the day when gay men and lesbians will know full equality in every corner of our country including the equal right to marry and adopt.

Posted by Lee at August 17, 2004 11:09 AM