As Katherine notes in the open thread below, Massachusetts’ highest court ruled Tuesday that same-sex couples are legally entitled to wed under the state constitution, but stopped short of allowing marriage licenses to be issued to the couples who challenged the law. The blogosphere has not exactly erupted in debate (yet), but the usual suspects are at it:
Andrew Sullivan proclaims himself “free at last,”
Glenn Reynolds provides a nice commentary, as well as a link to the opinion, and
John Derbyshire at NRO’s The Corner requests instruction “as to where, in the Massachusetts State Constitution, there is a clause authorizing the judiciary of that state to ‘order’ the legislature to legislate in a certain way?”
As for me, put me in the category of this decision is a good thing. I cannot, however, adequately answer Derbyshire’s loaded question (that’s the beauty, if there is one, of that which passes for Derbyshirian “discourse”). Sure, I can craft arguments in favor of the decision based on broad principles of law and equity, but let’s face it: This is essentially legislating from the bench. Should I put my doubts aside, and just be happy with the outcome?
UPDATE: Eugene Volokh ponders how we got to Goodridge v. Dep’t of Public Health, and notes “the tendency (whether good or bad) of past pro-homosexual-rights decisions to lead to homosexual marriage.” Professor Volokh warns: “this is a reminder not to pooh-pooh slippery slope arguments.” So noted, but given that Professor Volokh doesn’t actually criticize any “past pro-homosexual-rights” decisions — and handles the Goodridge decision with kid gloves — I’m left wondering the practical impact, if any, of his plea. Surely Professor Volokh wouldn’t elevate fear of the slippery slope above the need to uphold the law, if this be it? And does he really think we’ve slid to the bottom of the hill with Goodridge?
Is it the equal protection interpretation, or the remedy, that you have are concerned about?
The link to the decision itself–
http://www.masslaw.com/archives/ma/opin/sup/1017603.htm
I’ve just done a quick scan through.
They say it fails rational basis scrutiny–but it sound like Romer’s “rational basis with teeth” rather than the usual rubber stamp.
Personally, I’ll never understand why they don’t just make sexual orientation a suspect class. Yes, it’s arguably not immutable, but neither is religion–in fact sexual orientation is much more immutable than religion. There’s a long and storied history of discrimination.
If you’re problem is with the remedy: well, yes, that’s always a tricky business. But what’s the alternative? Surely no one suggests they strike down the marriage licensing statute. Interpreting it to apply to gay couples would be less than honest, though you could make a case for it since you’re supposed to interpret legislation not to conflict with the Constiution if you can. So they let the legislature choose the remedy–not the course I’d prefer, given what I know of our legislature, but it seems like the LEAST intrusive option to me.
YOUR problem. Oy. Get excited and where does my grammar go.
This is essentially legislating from the bench.
Shock and horrors, legislation from the bench.
Oh my!
Von, I can only assume that any of the MA justices who affirmed the opinion are no longer suitable for the federal judiciary.
I wonder if this will be an issue in the upcoming election. It certainly won’t help Dean.
No, it won’t help Dean. He hasn’t released a statement yet. It may be a crazy day for him, there’s a story in an Australian paper that his brother’s body may have been found in Laos. (He died almost 30 years ago). Though they appear to think John Dean of the Nixon administration is Howard Dean’s father.
It should be an interesting comparison, how this plays out in Massachusetts versus Vermont. The public is more supportive, I know–I bet a majority supports civil unions–but the legislature (or at least our esteemed House Speaker, Thomas “%$#^$#” Finneran) is probably more opposed than his Vermont counterpart–and Mitt Romney, obviously, is not Howard Dean.
The bench always legislates. I learned that 25 years ago in law school.
If MA ends up allowing gay marriage after whatever dustup occurs with the Legislature settles down (I’d expect opponents to start throwing legislative dust up to stall until a state constitutional amendment can be passed, since things will get ugly if a few hundred thousand marriages get nullified when and if it arrives), that’s really not going to have all that big an impact in and of itself. Now, if gay couples start getting married in MA and going back to their home states in the expectation of being treated as married there (which is what the DOMA was intended to prevent), *that’s* going to cause some serious uproar. Public statements aside, this is a rather nasty political landmine for the Democrats, and a fundraising goldmine for Republicans.
I’m with Katharine – it might backlash electorally for the Democrats, but I don’t much care – so did the civil rights movement.
Is it the equal protection interpretation, or the remedy, that you have are concerned about?
Actually, Katherine, the Court is applying a hybrid due-process-equal-protection test. (That’s one of the criticisms of Justice Greaney’s concurrence, which advocates invalidating the statute solely on equal protection grounds.) But, yeah, it’s the quasi-hybrid test that bothers me. There’s far too much mushiness in it. I’m giving some thought as to whether Greaney’s approach might be the better way to go, or whether the decision — morally and pragmatically right though it is — is njust “bad law.”
I’ve got no problem with the remedy, by the by — it’s basically an order that’s been stayed.
Von, I can only assume that any of the MA justices who affirmed the opinion are no longer suitable for the federal judiciary.
TtWD, if you think I’ve been inconsistent with respect to my handling of this case as compared to Justice Brown, think again. Passing the fact that different Constitutions are in play, the Mass. Court decision is better reasoned, and more rooted in the common law, than the Lochner decision. And I expressed a distrust of judicial “activism” in both events.
The bench always legislates. I learned that 25 years ago in law school.
I’d agree from the 10,000 foot level, Englishprofessor, but there is a real difference in approach between, say, Justices Douglas and Black (at the end of their terms). I’m inclined to view the Judge as a watchsmith, not as an architect. (Though, in the case of Justice Black, some pretty gosh-darn big watches got smithed.)
Public statements aside, this is a rather nasty political landmine for the Democrats, and a fundraising goldmine for Republicans.
Yup, ‘fraid I’m forced to agree, M. Scott.
I agree with Seth.
Though it would be a nice moment for all fathers of gay daughters if Dick Cheney actually stood up for his daughter’s right to marry her partner, instead of going along with the standard Republican bigotry, the right wing has too much invested in anti-gay bigotry to let them do that.
The decision is rather amorphous. I prefer Greaney’s approach to majority’s, and I prefer mine (intermediate scruting because sexual orientation is a suspect class) to both.
But since I think it is fundamentally right about the Constitution’s requirements, though I would’ve written the opinion differently, I don’t get too upset. I think it makes much more sense to apply the bill of rights to the states through the privileges and immunities clause than the due process clause, too, but that would require re-writing so many court decisions….
In college I like Justice Black’s approach. Now I’m not sure. Every judge legislates; at least the realists are honest about it.
Though it would be a nice moment for all fathers of gay daughters if Dick Cheney actually stood up for his daughter’s right to marry her partner
Yes, it would be a nice moment, and one who’s time (I believe) is coming. On “live-and-let-live” cultural issues, where all the action is between consenting adults (so to speak), I firmly believe in the tipping point theory. We’re rapidly approaching that point with respect to gay rights, and poticians who don’t pay lip service to those rights going to become unelectable.
In college I like Justice Black’s approach. Now I’m not sure.
I don’t know if two constitute a trend, but I feel pretty much the same way ’bout ole Hugo Black. Wonderful simplicity, which makes you wonder how it can possibly apply to such a horribly complex thing as life.*
von
*Hey, I don’t have the answers — haven’t even gotten to the point where I’m comfortable with the questions.
“Surely Professor Volokh wouldn’t elevate fear of the slippery slope above the need to uphold the law, if this be it?”
The bottom line is that the sequence of events that the less hysterical opponents of gay marriage have predicted seems to be occurring. A state supreme court has ruled, more or less, that gay marriage can’t be banned, and the state legislature will be unable to pass a state constitutional amendment fast enough to stop it from happening (barring unforseeable developments). The ACLU and gay rights organizations *will* use this opening to test the DOMA–if that is ruled unconstitutional, then the possibility of gay marriage being forced onto all of the states via judicial fiat becomes a possibility. It’s not an issue that I’m particularly fired up about (though after seeing what Roe did to the abortion debate, I’d really rather not see this issue resolved in that manner), but a lot of people (both Democrats and Republicans) *do* feel rather strongly about it, and the backlash might well saddle us with an overreaction of a federal constitutional amendment that we could all do without.
Volokh is trying to restore the slippery slope argument’s validity, because as applied to the Second Amendment it’s very important to him. I think.
My guess from the early reaction is that there’ll be a push for a constitutional amendment by Finneran and Romney. But they can’t pass one by the deadline.
I heard on the radio that Mitt Romney is going to attempt an Amendmant to the Ma. Constitution to effectively ban gay marriages. *sigh*
Von, the Lochner decision was premised on “natural law” as compared to “common law” wasn’t it. I believe natural law was the flavor of the day in the early 20th century.
In any event, it should be really interesting to see how everyone treats this black robe legislation.
The ACLU and gay rights organizations *will* use this opening to test the DOMA
I’m not a lawyer, but I don’t see how they can do that — this was a state court ruling based on a particular state consitution. How does it have any bearing at all on a federal case?
How does it have any bearing at all on a federal case?
I presume the poster’s thinking about a challenge based on the full faith and credit clause of the U.S. Constitution, which provides that each state shall extend “full faith and credit” to the actions of another state. Thus, if MA says you’re married, NV has to agree and provide the same marital benefits. DOMA basically says that states need not extend full faith and credit for homosexual marriages. Thus, the potential Constitutional argument.
‘Course, I may have misread the poster.
the Lochner decision was premised on “natural law” as compared to “common law” wasn’t it.
Well, I don’t think that’s technically correct, though I see your point. And nice work catching my dodge (good show).
Oooooohhh, I see. Thanks for the explanation, von.
“‘Course, I may have misread the poster.”
Nope–right on the money, Von. 🙂
The Full Faith and Credit Clause (and DOMA being passed in reaction to it) is the reason for most of the uproar here–I don’t see the USSC reaching out and declaring that gay marriage is a federally protected constitutional right any time soon–but they might be more sympathetic to forcing states to recognize marriages that are legal under the laws of any single state. It’s a big unknown, and a plausible reason for people who don’t want to see gay marriage in their neck of the woods to believe that it may be imposed on them by judicial fiat. Whether it would actually go down that way is another matter, but without that factor gay marriage would probably be a non-issue until the makeup of the USSC made a Loving v. Virginia type decision regarding gay marriage more likely.
Well, I don’t think that’s technically correct
Well, I think it is technically correct but then again I’m not a lawyer, so my assertion is from a historical as compared to a legal perspective.
I am looking forward to the fun and games associated with this opinion (such as a wedge issue used against the current filibuster). It should be fun. 🙂