Tuesday, November 18

Some Thoughts on Goodridge - In no particular order, my off-the-cuff observations from the text of the ruling:

    No constitutionally adequate reason - The court analyzed the case under a minimal "rational basis" test, which it said the statute failed. The judges therefore did not have to decide if they should apply "strict scrutiny" as they would if a fundamental right or suspect classification were implicated. Only few suspect classes are recognized -- race, ethnicity and religion -- and gays have never rated that level of protection in court-developed law. Using the less-strict test, but striking down the law anyway, seems to be a theme in recent gay rights cases, notably SCOTUS's Romer in 1996 (throwing out Colorado's Amendment 2).

    No privileged intercourse - The court absolutely demolished the faulty logic of the "marriage is for procreation" argument. That's not a tough argument to refute, since we all know childless marriages. In doing so, the majority adopts a strikingly modern concept of reproduction and comes close to stating that "inherently more cumbersome non-coital means of reproduction" are no less valid than the old fashioned kind. Remarkable.

    Married with children - I think the court had a less solid foundation to attack the state's argument that opposite-sex marriage is the best environment for child rearing. That probably reflects my own biases on the subject, for even I am not convinced that having two mommies or two daddies is as optimal as having one of each. The standard counterargument -- that you're closing the barn door on a society that's already changed -- seems weak to me. In any case, the majority find that barring two same-sex partners from child rearing "cannot plausibly further" the government's stated policy of supporting good child rearing.

    The impact of Lawrence - The majority opinion cited Lawrence throughout for aspirational principles, if not direct precedent. The dissenters obligingly quoted Scalia's warning that Lawrence would lead to gay marriage.

    The uniqueness of Massachusetts - The majority opinion is replete with references to the progressive social situation in MA, which support the court's pro-gay finding and which don't easily carry over to other jurisdictions. A citation to the commonwealth's "strong affirmative policy of preventing discrimination on the basis of sexual orientation" doesn't exactly translate to states such as Virginia where the legislature has repeatedly balked at decriminalizing gay sex. In any event, the case was decided under Massachusett's constitutional principles, which are "if anything, more protective of individual liberty and equality than the Federal Constitution." The good news is that the ruling can't be appealed any further. The bad news is that the ruling doesn't apply anywhere else.

    What the opinion does - By its terms, Goodridge left the language of Massachusett's marriage licensing laws intact. The court merely "construe[d] civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." Yet the justices unaccountably stopped short of ordering that marriage licenses be granted to the plaintiffs. The court is conspicuously silent on what it expects the legislature to do all the while instructing it "to take such action as it may deem appropriate in light of this opinion." Not following through, considering everything else at stake, is surely disappointing.

    Best zinger by the opposition - After quoting Lawrence's holding which threw out state regulation of intimate activity, Justice Spina wrote in dissent "Ironically, by extending the marriage laws to same-sex couples the court has turned substantive due process on its head and used it to interject government into the plaintiffs’ lives." Touché, but: Consider the religious freedoms enshrined in the First Amendment. They guarantee both free exercise of and freedom from the establishment of religion. Not everything is about getting government out of lives. Sometimes it's about making government treat us all the same.