E-Mail This Article to a Friend FREEDOM WATCH Gay-marriage foes spin their wheels BY HARVEY A. SILVERGLATE

There’s a lot of disingenuous spin coming from the foes of same-sex marriage. On Monday — no doubt much to the joy of anti-gay-marriage forces — the US Supreme Court refused to take up the petition filed by lawyers for Liberty Counsel, a nonprofit legal-advocacy group, on behalf of the Catholic Action League and 11 Massachusetts state legislators seeking to overturn the Bay State’s same-sex-marriage decision. Indeed, far from presenting a legitimate or substantive legal question, the petition appears calculated merely to demonstrate the supposed need for a "defense of marriage" amendment to the US Constitution.

The Supreme Court’s refusal to review the issue presented by the petition — whether the Massachusetts Supreme Judicial Court’s decision in Goodridge v. Department of Public Health, mandating same-sex marriage under the state constitution, violates Massachusetts citizens’ federal constitutional right to enjoy a republican form of government free from judicial encroachment upon strictly legislative decisions — was fully expected by anyone with the slightest knowledge of the law. At this point in the legal war over same-sex marriage, no real federal issue exists for any federal court, much less the US Supreme Court, to review. The SJC decided the case according to its interpretation of the state constitution, and a state’s highest court has always been deemed the ultimate arbiter of the meaning of every clause in that document. Federal courts intervene in only two circumstances: 1) if a state constitutional interpretation contravenes a federal statute or constitutional provision; or 2) when the decrees of one state are refused recognition by another. The latter may arise if a married same-sex couple from Massachusetts seek to force recognition (under the federal constitution’s "full faith and credit" clause) of their union in another state, or if a gay couple who reside outside Massachusetts come to the Bay State for the sole purpose of getting married and then return to their state of residence. But right now, there are no grounds for federal judicial review of Goodridge.

So why did Liberty Counsel and its clients file their Supreme Court petition when they had virtually no chance of obtaining high-court review? The answer lies, perhaps, in some of the tactical rhetoric following the petition’s denial. "This case is a minor skirmish in the overall issue of same-sex marriage," Erik Stanley, Liberty Counsel’s lawyer, told the Boston Globe, which included his comments in a page-one, above-the-fold article. "The decision today underscores the need for a federal marriage amendment to define marriage as between one man and one woman." (Of course, it does no such thing, since the Supreme Court was not presented — as it likely will be some years from now — with the overriding question of the validity of a Massachusetts marriage in other states. Until that case arises, Massachusetts same-sex marriage remains a strictly local matter.)

According to the New York Times, same-sex-marriage opponents claim that "the Supreme Court’s tacit refusal to contradict the Massachusetts court would only help their campaigns against ‘judicial tyranny’ at the polls by helping the passage of amendments blocking same-sex marriage." This spin is likewise misleading. The Supreme Court "refused to contradict" the SJC because no substantial federal question was presented. (No respectable legal scholar or litigator would deem the Constitution’s "republican form of government" guarantee to preclude the kind of "judicial activism" supposedly exhibited by the SJC’s Goodridge decision. Indeed, the Supreme Court itself has been known to reach pretty far in asserting its authority over the other branches of government — and even over the electorate — as demonstrated by its decision in Bush v. Gore, which decided the 2000 presidential race.)

Equally misleading is the assertion, attributed by the Globe to unnamed "legal specialists," that the Supreme Court kept out of the fray "while [gay marriage] is still such a fresh source of controversy nationally." The court kept out of the fray because it had no legal hook by which to get into the fray. In the legal battle over gay marriage, Monday’s refusal by the Supreme Court to put its oar in the water didn’t even qualify as a skirmish.