The proof of the strength of the SJC’s ruling lies in the weakness of its dissenting opinions
BY HARVEY A. SILVERGLATE
Marriage comes to gay and lesbian couples: complete coverage
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National Democrats should embrace the issue. By Dan Kennedy
Why the court ruling is so strong. By Harvey Silverglate
Next steps on Beacon Hill. By Kristen Lombardi and Susan Ryan-Vollmar
Media overdrive. By Camille Dodero
People are talking. By Chris Wright
Plaintiffs rejoice. By Adam Reilly
Right wing plots counterattack. By David S. Bernstein
City councilors back SJC decision. By Deirdre Fulton
From our archives: Meet the plaintiffs in Goodridge et al. By Kristen Lombardi
EXCERPTS FROM Chief Justice Marshall’s majority opinion:
• "The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution."
• "The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death."
• "It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a ‘civil right.’"
• "The right to marry means little if it does not include the right to marry the person of one’s choice."
• "As it did in Loving [the 1967 Virginia miscegenation case decided by the US Supreme Court], history must yield to a more fully developed understanding of the invidious quality of the discrimination."
• "Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family....Fertility is not a condition of marriage, nor is it grounds for divorce."
• "Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage.... If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities."
• "The history of constitutional law is the story of the extension of constitutional rights and protections to people once ignored or excluded."
• "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason."
• "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others."
— compiled by HS
’TIS DONE! ON Tuesday, Massachusetts Supreme Judicial Court chief justice Margaret H. Marshall, joined by Associate Justices Roderick L. Ireland, Judith Cowin, and (in a separate concurring opinion) John Greaney, ruled that there is no state constitutional basis for denying lesbian and gay couples the right to wed. Undoubtedly, some will question the legal basis for the historic Goodridge ruling. But the soundness of the Court’s decision is best illustrated by contrasting it with the primary arguments of the bench’s three dissenters.
To begin with, dissenting justices Martha Sosman and Robert Cordy rely heavily on the claim that scientific studies do not yet show conclusively that children reared by same-sex couples fare as well as their counterparts in opposite-sex families. There "are still some observable differences," declared Sosman. "The Legislature could conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact on the upbringing of children are resolved," added Cordy. Yet neither dissenter seems to have grasped the import of the wise question asked by one United States Supreme Court justice during oral arguments in the aptly named case Loving v. Virginia, which invalidated Virginia’s anti-miscegenation statute in 1967. Virginia’s attorney general argued that children of same-race couples fare better, statistically speaking, than those of mixed-race couples, but he had difficulty dealing with this obvious question from bench: "You don’t know what is cause and what is effect. Assuming the validity of these statistics, I suppose it could be argued that one reason that marriages of this kind are sometimes not successful is the existence of the kind of laws that are at issue here, and the attitudes that those laws reflect, isn’t that correct?"
The Loving case was perhaps the most important US Supreme Court precedent for the SJC’s ruling in Goodridge. The analogy between Virginia’s ban on interracial marriage and Massachusetts’s refusal to recognize same-sex marriage turns out to be a pretty good one. Indeed, many of the reasons asserted by Virginia for banning miscegenation — including the welfare of children and the unreadiness of a substantial number of citizens to accept the change — are heard in the current debate on gay marriage. In fact, it is almost certain that more people in Virginia, if not in the entire country, opposed racially mixed marriages in 1967, than Massachusetts residents oppose gay marriage today. Fortunately, courts do their constitutional duty; they do not take public opinion polls.
Then there was the dissenting opinion of Justice Francis X. Spina, who chimed in with a proposition at once breathtakingly naive and cruel. There is no equal protection nor sex-discrimination problem in limiting marriage to different-sex couples, he wrote, because our current "marriage statutes do not disqualify individuals on the basis of sexual orientation from entering into marriage." This is because gays, like straights, are, in Spina’s view, perfectly free to marry — a person of the opposite gender! (One is reminded of the infamous comment that the laws of England, in their fairness and wisdom, punished the rich and the poor alike for stealing a loaf of bread.) Spina’s suggestion would seem as idiosyncratic as it is laughable but for the fact that it is reiterated by dissenting Justice Robert J. Cordy in his separate dissent: "The classification is not drawn between men and women or between heterosexuals and homosexuals," wrote Cordy, "any of whom can obtain a license to marry a member of the opposite sex." (For this they get life tenure.)
MARSHALL AND HER allies were faced with only one significant counterargument — that this decision should be left to the legislature. Marshall advanced one reason for not deferring: it is up to courts to enforce constitutional rights when the other branches of government fail in their duty to do so, and the legislature has, indeed, failed. What no one said, but which surely bears mentioning, is that little more than a week before the SJC issued its decision, state legislative leaders announced that they were postponing the debate on whether to amend the state constitution to bar marriages of same-sex couples in favor of waiting for the SJC’s decision. With the legislature voluntarily abandoning an opportunity to arrive at its own solution, the SJC filled the vacuum. This can hardly be called judicial usurpation of the legislature’s prerogative.
The four justices in the majority were careful to base their decision on state constitutional grounds. This means that the Commonwealth has no basis on which to seek review by the US Supreme Court, which has jurisdiction to decide federal constitutional questions. The SJC’s reliance on the Massachusetts Declaration of Rights is hardly revolutionary, even if this particular application is surely a bold step. In a 1982 case, for example, the SJC held that Massachusetts courts have to provide more protection against the use of coerced confessions than the Fifth Amendment to the Bill of Rights and the US Supreme Court demand. The next year, the SJC ruled that the state constitution’s free-speech provision applied to the rights of a person to solicit signatures on a candidate’s nomination petition in a private shopping center, even though three years earlier the US Supreme Court had refused to extend similar protection to shopping center leafletters under the free-speech provision of the First Amendment. And the SJC ruled in the 1984 Upton case that the state constitution provides more privacy protection than the Fourth Amendment (limiting police search and seizure). (Interestingly, back then Maureen Brodoff, one of the Goodridge plaintiffs, had filed a friend-of-the-court brief on Upton’s behalf in her then-capacity as a Massachusetts public defender. The SJC’s decision on marriage, nearly 20 years later, was predicated in part on the legal doctrine that emerged from that case.)
It helped, too, that the SJC was able to point out that "the history of constitutional law is the story of the extension of constitutional rights and protections to people once ignored or excluded." It noted that the US Supreme Court in 1996 prohibited the exclusion of women from the Virginia Military Institute, which theretofore had been an all-male public institution. Even in the area of marriage, courts have long injected themselves to effect fundamental change. Thus, the SJC majority opinion cited a 1904 case in which the SJC refused to follow an ancient rule "that the wife’s legal residence was that of her husband." In 1976 the SJC threw out another old legal doctrine that immunized a husband against certain lawsuits because that rule was based on "antediluvian assumptions concerning the role and status of women in marriage and in society." After all, as the SJC reminded us this week, "civil marriage is an evolving paradigm," and in earlier centuries and decades "the common law was exceptionally harsh toward women who became wives: a woman’s legal identity all but evaporated into that of her husband." Courts played a large role in changing that paradigm.
These precedents made it clear that courts for a very long time have been called upon to change the rules of the marriage game. What makes same-sex marriage a hotter potato probably has more to do with sexuality than with any inherent disability on the part of the judiciary to make decisions that are also within the power of the legislature, should it choose to do its duty. The SJC even took the sexual morality issue head-on, reminding gay marriage’s socially conservative opponents that consensual adult sex, including homosexual sodomy, was decriminalized by an SJC decision back in 1974, long before the US Supreme Court did the same thing on a national basis earlier this year in Lawrence v. Texas.
Chief Justice Marshall recognized that other states or the federal government might take steps to limit the validity, outside of Massachusetts, of a Massachusetts gay marriage. She asserted, however, that that possibility should not "prevent us from according Massachusetts residents the full measure of protection available under the Massachusetts Constitution." The SJC could not, of course, do anything to control what federal legislation or a constitutional amendment might do to limit the interstate impact of the Goodridge decision. It seemed satisfied to extend the benefits of the Massachusetts Constitution to this state’s gay residents, and to leave the rest to politics and history.
The SJC has given the legislature 180 days to figure out how best to implement its decision. However, the majority opinion gives the legislature fairly limited room to maneuver. The bottom line of any such legislation will have to be that gay couples have the right to become spouses in this state on the same terms as straight couples. Whether a state constitutional amendment will undo this, or whether federal legislation or a federal constitutional amendment might serve to limit the national reach of a Massachusetts marriage, is for another day, another battle. Since the battle for liberty is never "finally" won, liberty, justice, and equality under the law have to enjoy their victories one day at a time.
Harvey A. Silverglate, a Phoenix "Freedom Watch" contributor, is a criminal-defense and civil-liberties lawyer with the Boston firm of Good & Cormier. Carl Takei assisted with research for this piece.