Help me with the Massachusetts decision RE: gay marriage/judicial activism

Link provided to the Massachusetts decision. Link.

Maybe people are tired of this discussion, but I do not feel the debates had so far have helped me understand the issue more than when it first came out. They reference a million different court cases in order to support their opinions. Some that sort of made me feel good about the decision:

Is this the “scary” judicial activism I’ve heard about: interpreting existing cases in light of existing regulations when a case that seems to present a contradiction is brought forward?

The decision practically opens with the notion that “marriage”, as a term, is indeed only between a man and a woman as understood for centuries. Yet it goes on to develop the idea that legal marriage is itself not an isomorphism between the state’s creation of a civil union and the historical union called “marriage”. In other words, while it is the case that legal marriage has indeed been used to codify “marriage”, they should not automatically be seen as synonymous, especially when taken in view with the rest of legislation (and historical opinion) regarding what a civil union between two people is and, through the creation of this privilege, laws that regulate how privilege is given in society (equal protection laws, for instance).

They reviewed the case on these grounds:

So what I’m failing to understand here is how this decision was in some grander sense incorrect, and how it represented judges trying to overstep their bounds. On the surface, denying a civil liberty to a person based on qualities it is not in the state’s interest to care about in the first place seems obviously discrimatory, but I will not go so far as to say anyone who felt the decision was improper is a bigot, idiot, or other name-calling. Largely because I don’t understand what the problem with the Massachusetts decision is in the first place. It seems reasonably presented and well-argued.

What am I missing?

Note I’m trying to understand the legal issues here. The core questions I have, if it is not clear above, are

  1. What is wrong with the decision in the sense that a higher court, if it were challenged, would overturn it? (That, for example, the judiciary was incompetent in some way.)

  2. How does this represent judicial activism rather than the otherwise normal behavior of reviewing legislation, finding a contradiction, and demanding correction? Isn’t this a large part of bringing such cases to the courts?

In what sense is marriage-by-the-state 3a) not a civil union that has only historically represented “marriage”, and 3b) an institution that demands inequality?

If only, indeed.

A dissenter notes,

I do not agree with this reading. Rather, as I have read it, it is a reassessment of existing laws that create a direct conflict, and the majority was thus right to turn the matter over to the legislature to remedy the situation. How can demanding the legislature fix their own mistakes be “creating” rights, rather than noting that it was an existing right that has been heretofore discriminated against?

He notes,

What about what the majority opinion noted?

[quote]
See Perez v. Sharp, supra at 717 (“the essence of the right to marry is freedom to join in marriage with the person of one’s choice”). It is pure sophistry to insist that a homosexual is afforded the right to marry since they are free to marry anyone they don’t love (in a spousal sense) or aren’t interested in (to wit, the opposite sex).

Sossman notes,

This seems, to me, to be an intentional act of ignorance in terms of what was argued. Indeed, as Marshall noted (and I am requoting),

The sentence stressed (by me) indicates a clear reading: it is not a matter of suggesting any and all unions that bear a passing resemblence to some qualities of marriage should be interpreted as marriage. I cannot possibly find support in the text that should a man and woman have a child and raise it together we should find them to be married regardless of whether or not they actually got married. Indeed, the very essence of marriage noted is that it is both a private and public voluntary commitment. So how can we take this to read what the dissenter insists?

Sosman then harps on and on about the child rearing issue some more, as if this was really the hallmark of “marriage”. To whom as the question of marriage ever been about childrearing? In what legislature anywhere was a marriage license denied to a sterile woman or man?

Cordy also takes this tactic, though at least manages to work in a few previous decisions in his opinion.

This is contrary to the majority opinion which found that the state’s interest in marriage was in encouraging stable relationships, rather than just childrearing, though it did not deny that this is an important part of marriage.

But this tactic still sidesteps the main issue (to me): marriage confers benefits and responsibilities to the party regardless of their ability or intent to procreate, and so if the state’s abiding interest in marriage were based on procreation, then marriage itself as it currently practiced doesn’t do this. If I married a woman, we would be able to file jointly on our tax returns without having to submit proof that we are having unprotected sex. We could obtain family insurance without demonstrating that one of us is sterile. If the institution of marriage, as legally embodied, is there because of the state’s abiding interest in procreation, the legislature has done nothing to forward this.

No matter how I view the issue (so far), I think the court was right. It does not undermine “traditional” marriage while demands a more concise view of marriage be taken by the legislature. The association to civil rights cases is, I think, wholly appropriate. Marriage confers legal privileges and responsibilities to the couples regardless of their desire or ability to bear children, so it seems to be pure sophistry to insist that it may continue to discriminate based on this.

I have some quibbles with it, but they are points on which reasonable people may disagree. The bottom line is that the court found in the Massachusetts constitution a requirement for the state to sanction gay marriage. The state level is the correct level for the decision to be reached. If I were a Massachusetts resident, I think I’d want my legislature to weigh in on the issue, but that’s for the state and its residents to decide. For my part, I’m perfectly willing to hear that Massachusetts has such a rule, and I have no great heartburn with it.

  • Rick

Like Bricker say, the decision was based on the Massachusetts Constitution, not the U.S. one, so no higher court exists. States can offer more protection than the U.S. Constitution requires. I’m at work on 9:00 on a Saturday night trying to do something similar with the Texas Constitution to keep a guy out of the slammer. :smiley:

Massachusetts, IIRC, has an amendment very similar to Title VII of the Civil Rights Act built into their state constitution. Organizations are allowed to discriminate beyond those protected classes or within those protected classes if reasonable justification can be made for this. The Department of Public Health, a state-funded institution, forbade the issuance of marriage certificates based on the gender of the people involved, thus potentially putting them in violation of the amendment if 1) They could not prove forbidding licenses to same-sex couples was not a violation based on gender and 2) Could not substantiate reasonable justification for such acts of discrimination.

Point 1, to my knowledge, was never really contested by the state attorneys. Clearly it is discrimination based on gender, since a man and a woman could get married but a man and a man could not. On the face of it: clear discrimination.

Point 2 was the more heavily contested piece of the case. However, IMO, it was a foregone conclusion based upon past legal precedents laid down by judiciaries both on the federal and state level. If a state has no right to legislate one’s fertility (all those contraceptive cases) and no absolute right to infringe one’s right to marriage (Loving v. Virginia), then the Dept. of Public Health’s arguments fall to pieces in a major way.

By taking the tack that public incentive was marriage for procreation, they tried to provide a prop for discrimination using a branch (state legislating procreation) which had already proven quite weak indeed. Thus, with no arguments extensively done on Pt. 1 and a flawed argument on Pt. 2, the policy was found to be in violation of their state-wide equal rights amendment.

The case for judicial activism can not really be made for the Mass. supreme court ruling, but can for the precedents it rests itself upon. If one finds those rulings flawed, then one can kick out the central props for this decision.

What would be really fun, though, is if they amend the state constitution in such a way that it puts one part in conflict with another.

All of this post, however, should be read with the provisos as follows: IIRC, AFAIK, and IANAL.

I do not consider the case unwarranted judicial activism. The principle of judicial review, enshrined in American jurisprudence for 200 years (this year is the 200th anniversary of Marbury v. Madison), says that when a statute law or regulation contravenes a constitutional standard, the law is void and unenforceable; if the application of a law in a given way violates a constitutional standard, the law may not be applied in that way.

The Massachusetts court, acting on substantial precedent, decided in response to a “real case or controversy” that the application of the Mass. marriage law contravened the state’s constitutional provisions. It therefore deemed it unconstitutional as currently worded, and stayed its decision for six months to give the legislature time to bring one into conformity with the other.

The problem, according to those who consider themselves strict constructionists, is that the decision is based at least in part on due process grounds. Because these are not merely procedural matters but go to the substance of the situation, it therefore depends on substantive due process – which strict constructionists argue, with some merit, gives the courts license for interpretations that have no real practical limits except the personalities of the judges making the rulings.

Dewey Cheatem Undhow has written at some length on the evils of substantive due process on these boards, and I refer you to his comments for a better explanation than I can give (and argued by someone who believes firmly in strict constructionism and that substantive due process is a two-edged sword, with license for judges to commit social ills – which can be illustrated by past cases such as Lochner).

No problem, especially in this case, because presumably the amendment would explicitly disavow the requirement for the legislature to fashion same-sex marriage laws; the requirement that the legislature must fashion such laws is only implicit.

In any event, when two laws seemingly contradict each other, they must be read in pari materia, giving full force and effect to each, with every attempt made to harmonize them and weighing the specific over the general.

So if one part of the state constitution says that the people’s rights to free and unfettered parking on the sides of public roads may never be abridged, and another provision says that handicapped spaces may be reserved for the handicapped, then the rule will be interpreted as allowing handicapped parking but no other restriction on parking.

  • Rick

I was really hoping you’d weigh in on this due to your arguments in the Pit thread (and elsewhere) that indeed called for handling this at the state level. My concern with “this is a states’ rights issue” is with respect to other states honoring or not honoring the marriage, should the legislature not draft something that keeps homosexual marriage illegal.

But this is what I don’t get: aren’t they? Isn’t that part and parcel of the court order, or is the court order to only bring legislation in line with allowing gay marriage? From my understanding, there is still the ability to ban it. This is partly why I need help to understand the case’s implications.

While the state attorneys may not have contested point 1 - i did not hear oral arguments or read the briefs - the dissenting opinions did respond strongly to this argument (made in a concurrence. Effectively they argued that the relevant amendment in the Mass Constitution had historically been interpreted to mean that one sex as a whole could not be treated differently than the other ex. if all women could not drive or somesuch. I don’t buy the argument and i’m told it holds little water.
Why it matters
If the case is a matter of discrimination based on sexual orientation, as the majority treated it, then the standard of review is rational basis. If it is instead one of gender discrimination, then under the ERA (mass passed a version into their state con) a higher standard of review would be required. From a rational basis standpoint, the case is a toss up; nearly anything can satisfy such a test. if this were treated as a matter of strict scrutiny, I believe that it is a no brainer.

to erislover:
1.) the options left to the Mass. legislature are unclear, perhaps intentionally so. They must bring the law in line with the ruling, however, the SJC may only require civil unions. It is also possible that the Mass legislature could repass the marriage law with a new justification hoping that it would now pass rational basis review. The latter option has been considered but i’m not sure how seriously. They could also begin the amendment process in which case the court might extend the stay.
2.) In terms of states recognizing the marriages of other states, ever though of eloping to vegas? under the full faith and credit clause of the federal constitution, all states must recognize the legal agreements formed in other states, including marriage. this is settled law. if one state recognizes same sex marriage, it would be the matter of a few years and a few lawsuits before other states had to respect those unions (though they would not be required to perform them).

This is why the possibility of a state actually allowing same-sex marriage is such a hot-button issue for conservatives. They know that within two weeks of a legislature actually letting SSMs be performed, there’s going to be a challenge to DOMA, and they also know that DOMA is built on a tissue-paper thin rationale. If anyone actually does push through SSM, the Supremes are going to blow through DOMA like the star quarterback blowing through the giant butcherpaper school mascot at the Homecoming Game pre-show.

No, the FFC clause does not necessarily compel a state to accept an act that is contrary to the public policy of that state.

From *Pacific Employers v. IAC *:

  • Rick

I’m not familiar with that particular case but, if this quote is representative of its meaning, i do not see a conflict. No state would be required to use the statues of another state in place of their own, but every state would be forced to recognize the product of those statues, the marriage license. Whether that marriage license could have been issued by the state in question is irrelevant. i could go back and find precedent to that effect, but the simple fact that you can leave your state, get married, and then return as a married couple is an illustration of this principle. Searching online for this decision or any commentary regarding it has proven fruitless. Is this a federal case? if so, from what court?

In order to properly parse this, I’ve read up on rational basis and strict scrutiny. So the fundamental question we have here is whether marriage is a fundamental right or not. If so, it has to go towards the strict scrutiny side and question whether the government has provided a compelling state interest. If by “no brainer” you mean “they haven’t”, then I’d agree, but to be frank this is because I already support gay marriage in the first place. I don’t intend to hide my bias, but I’m trying to not let it interfere with my assessment of the decision.

I note that there is a presumption under a rational basis that the law is valid, and then only wonders whether the means are sufficiently related to the ends, not whether the law is a “good idea” or not. In this case it doesn’t seem to be much of a toss-up, either: marriage by the state per se has little to do with childrearing. If this is their defense, I would expect them to appeal to laws that have to do with childrearing, adoption, and so on, and point out that in all these areas homosexuals are also discriminated against… which they cannot. Obviously I am not fit to sit on the bench, but if I did this discrimination would fail a rational basis for me, as well. I note that in one of the dissenting opinions, it was mentioned that current research is ambiguous about whether or not children raised under homosexual relationships have any particular problems (while the majority only mentioned, as far as I can tell, that it didn’t affect their sexual alignment). Supposing this is the case, even still I don’t think the state has made its case by attempting to support discrimination based on vague scientific studies. In other words, it seems that the presumption of equality should override unless a compelling reason is shown. In this case, it is hardly compelling to say “keep the discrimination because we just don’t know yet if it is bad.”

I mentioned my bias, and I fear it is stopping me from properly understanding the debate since both approaches seem that the discrimination can’t be supported to me.

Let me explain…no, no, there is too much…let me sum up:

“Substantive” due process is a contradiction in terms, the transformation of a simple requirement of procedural fairness and the right to be heard into a blank slate upon which the judiciary can write its own policy choices. It takes away from the people governing authority which they did not cede to the judiciary (the text of the constitution and its amendments represent the authority granted to the judiciary to restrain majoritarian decisions).

I’d rather not reinvent the wheel, so for a more fulsome discussion, see this thread: Rights? What’s a Right?

As for the Massachusetts decision itself, I am unfamiliar with the history and framers of that document, and thus can offer no opinon on the validity of the court’s decision.

To expand on this (and recycle an old post of mine):

Perhaps. I think by making this claim (and I am reading into it posts in the thread you linked to) you place far too much confidence in the accuracy of representation, but that is neither here nor there.

I can’t see how one implies the other, but I can’t force you to participate of course. Thanks for the link, anyway, to help me understand this substantive due process issue better.

Let me explain: if the Massachusett’s court’s opinion is consonant with the history and text of their state constitution, then I have nothing to complain about. If it is not, then I think they stepped out of bounds. Since I am not familiar with Massachusetts legal history, I really can’t make a legitimate judgment on that. For all I know, the Massachusetts framers might have written with a deliberately broad sweep that they would have considered encompassing the present decision. That’s probably not very likely, but I’ve got no basis to say one way or the other.

My principal problem with this decision is not that the Massachusetts SC had no real basis in the state constitution for this ruling…I suspect they didn’t, but I wouldn’t be competent to argue the point without doing a lot more reading…but rather the fact that, having found the law unconstitutional, they didn’t strike it down, they simply decreed that it be changed. It is the proper function of the courts to strike down laws that are genuinely unconstitutional; it is emphatically not their function write laws, or rewrite them.

It is one thing to simply strike down the marriage law on constitutional grounds. It is another thing entirely to say that the law is still on the books with just a little bit of white-out over a few specific words, with new words written over them. That’s judicial activism.

I’m not sure this is exactly what happened, because I don’t think the law was itself unconstitutional. The implied discrimination was, and the situation had to be amended somehow, either by clarifying that there was no discrimination, or otherwise doing something to make the discrimination “ok” (like an amendment).

But again, I’m the one asking for interpretive help in the first place. :stuck_out_tongue:

No, they didn’t. They simply allowed the legislature 6 months to do so on its own initiative before the ruling becomes effective. The legislature is not required to do anything, and the current scuttlebutt is that they won’t, seeing no way to avoid allowing gay marriage that could stand up both judicially and politically.

Just ftr, Chief Justice Margaret Marshall is a native white South African who spent her young activist years organizing anti-apartheid protests (before discovering the huge money to be made in corporate litigation in the US). The ruling’s regular references to anti-miscegenation laws just may have been influenced by her background.

Given the choice between remanding the case to the legislature for remedy and destroying the civil institution of marriage by rendering the law null, you would choose the latter? To put it politely, striking down the law would have created a lot of paperwork. Judges must take into account the social consequences of their rulings. To minimize social harm they gave the legislature a grace period. They had no obligation to do this, they could have just as easily ordered the marriage licenses be issued or struck down the marriage law as you suggest. That they did neither is an example of judicial restraint, not activism.
On Strict Scrutiny:
Strict Scrutiny is used in cases involving fundamental rights or suspect classes. Under the Massachusetts Constitution, gender is a suspect class. If this case is treated as a matter of gender discrimination, then strict scrutiny is appropriate. The fundament question is not whether marriage is a fundamental right.
On the FFC clause:
The public policy exception has, to my knowledge, never been successfully used to challenge recognition of a marriage. The below is all i could find on short notice but I’ve seen similar arguments elsewhere. Note the interracial marriage case mentioned, it parallels the current situation most closely.
http://www.ibiblio.org/gaylaw/issue4/cox3.html