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Anatomy of Judicial Usurpation

The collapse of civil society continues apace in Montana where its reported that the Supreme Court of that state has overturned a lower court’s ruling permitting the Montana University System’s policy of denying group health coverage to same-sex couples. The Supreme Court’s opinion is a microcosm of contemporary societal befuddlement and the judicial deprecation that is both its cause and its effect.

The majority opinion finds that the University System has discriminated against homosexuals. It seems the University System has long offered health coverage to dependent spouses as well as those who signed an affidavit asserting that they "mutually consented and contracted to become husband and wife." Naturally, a homosexual signed the affidavit trying to cover their partner. Unfortunately for the University System, they offered insurance to heterosexual couples who signed the affidavit but denied it to homosexual couples who signed. That clearly creates an equal protection issue, and the Court found the use of these affidavits violated the state constitution. The logic is unassailable.

The problem with the decision is that the legal question decided by the Court, the constitutionality of the affidavits, was never raised in the initial complaint. The original complaint challenged the policy of denying coverage to homosexual partners, period. It made no mention of the affidavit policy. The unequal protection argued turned not on a difference between homosexual affidavit holders and heterosexual affidavit holders, but between those who were statutorily married and those who were not. The dissent points out, to no avail, that no one is allowed to change their pleading upon appeal. Here, the Court has done the changing on behalf of the original plaintiff in order to strike another blow against traditional marriage.

Montana statutes state that “marriage is a personal relationship between a man and a woman” and that “a marriage between persons of the same sex” is “prohibited.” The University System’s variance of coverage according to marital status has strong common law support, which is why the lower court dismissed the case. That is a distinction that can be legally made without being discriminatory, unlike a distinction based on race or gender. But the common law is inconvenient for imperial courts, and steps must be taken.

How did Montana get here? At some point in the past, the University System had a clear policy of covering spouses. No doubt some progressive thinking unmarried couple demanded coverage, claiming that they did not believe in marriage, or didn’t need a piece of paper to prove they were committed. The University System, being already compromised by the liberal the contagion being spread by activist courts and cultural elites, caved in and invented the affidavit. The descent down the slippery slope was under way.

This decision is worth the read. It showcases a disingenuous majority skillfully pulling a gay rabbit out of the judicial hat. It also features a blathering, unschooled concurrence decrying the woe of the poor victimized homosexual in the current Dark Age. And for good measure, it has a desperate dissent that points out the obvious crime of the majority, but is then reduced to unbefitting contortions of its own in an effort at some corrupt expostulation.

This sobering burlesque plays itself out over and over across the country every day.


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This page contains a single entry from the blog posted on January 5, 2005 11:31 AM.

The previous post in this blog was What Hath Man Wrought?.

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