# Help me with the Massachusetts decision RE: gay marriage/judicial activism **URL:** \ **Category:** Great Debates\ **Created:** [February 1, 2004, 1:54am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979 "2004-02-01T01:54:26Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 1, 2004, 1:54am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/1 "2004-02-01T01:54:26Z")
Link provided to the Massachusetts decision. [Link.](http://benefitsattorney.com/goodridge.html) 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: > [@](#): > > Without the right to marry–or more properly, the right to choose to marry–one is excluded from the full range of human experience and denied full protection of the laws for one’s “avowed commitment to an intimate and lasting human relationship.” Baker v. State, supra at 229. Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual’s right to marry against undue government incursion. Laws may not “interfere directly and substantially with the right to marry.” Zablocki v. Redhail, supra at 387. See Perez v. Sharp, 32 Cal.2d 711, 714 (1948) (“There can be no prohibition of marriage except for an important social objective and reasonable means”). [FN15] > > … > > As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. 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”). See also Loving v. Virginia, supra at 12. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance–the institution of marriage–because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination. > > … > > The individual liberty and equality safeguards of the Massachusetts Constitution protect both “freedom from” unwarranted government intrusion into protected spheres of life and “freedom to” partake in benefits created by the State for the common good. See Bachrach v. Secretary of the Commonwealth, 382 Mass. 268, 273 (1981); Dalli v. Board of Educ., 358 Mass. 753, 759 (1971). Both freedoms are involved here. Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family–these are among the most basic of every individual’s liberty and due process rights. 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: > [@](#): > > **The plaintiffs challenge the marriage statute on both equal protection and due process grounds.** With respect to each such claim, we must first determine the appropriate standard of review. Where a statute implicates a fundamental right or uses a suspect classification, we employ “strict judicial scrutiny.” Lowell v. Kowalski, 380 Mass. 663, 666 (1980). For all other statutes, we employ the " ‘rational basis’ test." English v. New England Med. Ctr., 405 Mass. 423, 428 (1989). For due process claims, rational basis analysis requires that statutes “bear a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.” Coffee-Rich, Inc. v. Commissioner of Pub. Health, supra, quoting Sperry & Hutchinson Co. v. Director of the Div. on the Necessaries of Life, 307 Mass. 408, 418 (1940). For equal protection challenges, the rational basis test requires that “an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.” English v. New England Med. Ctr., supra at 429, quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 452 (1985) (Stevens, J., concurring). [FN20] 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? > [@](#): > > Individuals who have the choice to marry each other and nevertheless choose not to may properly be denied the legal benefits of marriage. See Wilcox v. Trautz, 427 Mass. 326, 334 (1998); Collins v. Guggenheim, 417 Mass. 615, 618 (1994); Feliciano v. Rosemar Silver Co., 401 Mass. 141, 142 (1987). But that same logic cannot hold for a qualified individual who would marry if she or he only could. If only, indeed. A dissenter notes, > [@](#): > > What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights. [FN1] The power to regulate marriage lies with the Legislature, not with the judiciary. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983). Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent. 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, > [@](#): > > Similarly, the marriage statutes do not discriminate on the basis of sexual orientation. As the court correctly recognizes, constitutional protections are extended to individuals, not couples. Ante n. 15. The marriage statutes do not disqualify individuals on the basis of sexual orientation from entering into marriage. All individuals, with certain exceptions not relevant here, are free to marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court. 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, > [@](#): > > Reduced to its essence, the court’s opinion concludes that, because same-sex couples are now raising children, and withholding the benefits of civil marriage from their union makes it harder for them to raise those children, the State must therefore provide the benefits of civil marriage to same-sex couples just as it does to opposite-sex couples. Of course, many people are raising children outside the confines of traditional marriage, and, by definition, those children are being deprived of the various benefits that would flow if they were being raised in a household with married parents. That does not mean that the Legislature must accord the full benefits of marital status on every household raising children. Rather, the Legislature need only have some rational basis for concluding that, at present, those alternate family structures have not yet been conclusively shown to be the equivalent of the marital family structure that has established itself as a successful one over a period of centuries. People are of course at liberty to raise their children in various family structures, as long as they are not literally harming their children by doing so. See Blixt v. Blixt, 437 Mass. 649, 668-670 (2002) (Sosman, J., dissenting), cert. denied, 537 U.S. 1189 (2003). That does not mean that the State is required to provide identical forms of encouragement, endorsement, and support to all of the infinite variety of household structures that a free society permits. 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), > [@](#): > > Individuals who have the choice to marry each other and nevertheless choose not to may properly be denied the legal benefits of marriage. **But that same logic cannot hold for a qualified individual who would marry if she or he only could.** 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. > [@](#): > > The Massachusetts marriage statute does not impair the exercise of a recognized fundamental right, or discriminate on the basis of sex in violation of the equal rights amendment to the Massachusetts Constitution. Consequently, it is subject to review only to determine whether it satisfies the rational basis test. Because a conceivable rational basis exists upon which the Legislature could conclude that the marriage statute furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children, it is a valid exercise of the State’s police power. 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 1, 2004, 2:39am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/2 "2004-02-01T02:39:12Z")
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 ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [February 1, 2004, 2:46am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/3 "2004-02-01T02:46:35Z")
> [@erislover](#): > > 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.) 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. 😃 ---
**Author:** ![Priam](https://avatars.discourse-cdn.com/v4/letter/p/77aa72/32.png) [@Priam](https://boards.straightdope.com/u/Priam)\ **Post date:** [February 1, 2004, 3:10am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/4 "2004-02-01T03:10:05Z")
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. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 1, 2004, 3:15am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/5 "2004-02-01T03:15:06Z")
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_). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 1, 2004, 2:20pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/6 "2004-02-01T14:20:05Z")
> [@Priam](#): > > 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. 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 ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 1, 2004, 6:32pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/7 "2004-02-01T18:32:45Z")
> [@Bricker](#): > > 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. 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. > [@](#): > > 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. 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. ---
**Author:** ![Telcontar](https://avatars.discourse-cdn.com/v4/letter/t/3bc359/32.png) [@Telcontar](https://boards.straightdope.com/u/Telcontar)\ **Post date:** [February 1, 2004, 7:59pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/8 "2004-02-01T19:59:24Z")
> [@Priam](#): > > 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. > . 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). ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [February 1, 2004, 8:08pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/9 "2004-02-01T20:08:45Z")
> [@Telcontar](#): > > 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 1, 2004, 10:46pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/10 "2004-02-01T22:46:43Z")
> [@Telcontar](#): > > 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). 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 \*: > [@](#): > > While the purpose of that provision was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states, the very nature of the federal union of states, to which are reserved some of the attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. - Rick ---
**Author:** ![Telcontar](https://avatars.discourse-cdn.com/v4/letter/t/3bc359/32.png) [@Telcontar](https://boards.straightdope.com/u/Telcontar)\ **Post date:** [February 1, 2004, 11:24pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/11 "2004-02-01T23:24:39Z")
> [@Bricker](#): > > 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? ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 1, 2004, 11:29pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/12 "2004-02-01T23:29:51Z")
> [@Telcontar](#): > > 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. In order to properly parse this, I’ve read up on [rational basis and strict scrutiny](http://faculty.lls.edu/~manheimk/cl2/sdp4x.htm). 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. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 2, 2004, 3:55am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/13 "2004-02-02T03:55:20Z")
> [@Polycarp](#): > > **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_). 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?](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=194286) 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. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 2, 2004, 4:00am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/14 "2004-02-02T04:00:05Z")
> [@Bricker](#): > > No, the FFC clause does not necessarily compel a state to accept an act that is contrary to the public policy of that state. To expand on this (and recycle an old post of mine): > [@](#): > > The FFC clause has its limits. No state is required to extend full faith and credit to laws of other states when doing so would abridge its own public policy interests. See, e.g., [Nevada v. Hall](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=440&page=410): “[T]he Full Faith and Credit Clause does not require a State to apply another State’s law in violation of its own legitimate public policy.” The definition of marriage is one such legitimate state public policy interest. > > _Hall_ doesn’t deal with family law, but it is a clear statement of the rule in play. And the courts have consistently held that the FFC clause doesn’t apply to many facets of family law. See, e.g., [Estin v. Estin](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=334&invol=541) (state may continue enforcing support order even after an out-of-state divorce purportedly terminated it), [Olmstead v. Olmstead](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=216&invol=386) (state need not honor another state’s statute legitimizing children born out of wedlock), and [Hood v. McGhee](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=237&invol=611) (state need not respect another state’s adoption proceedings in determining land inheritance). > > Put simply: if, say, California decided to recognize polygamous marriages, the Constitution would not require the other 49 states to honor those arrangements. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 2, 2004, 7:31pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/15 "2004-02-02T19:31:37Z")
> [@Dewey Cheatem Undhow](#): > > “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). 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. > [@](#): > > 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. 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. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 2, 2004, 9:19pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/16 "2004-02-02T21:19:43Z")
> [@erislover](#): > > I can’t see how one implies the other, but I can’t force you to participate of course. 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. ---
**Author:** ![Weird\_AL\_Einstein](https://avatars.discourse-cdn.com/v4/letter/w/c67d28/32.png) [@Weird\_AL\_Einstein](https://boards.straightdope.com/u/Weird_AL_Einstein)\ **Post date:** [February 3, 2004, 12:12pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/17 "2004-02-03T12:12:53Z")
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. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 3, 2004, 3:12pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/18 "2004-02-03T15:12:05Z")
> [@Weird\_AL\_Einstein](#): > > 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_. 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. 😛 ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 3, 2004, 3:43pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/19 "2004-02-03T15:43:05Z")
> [@Weird\_AL\_Einstein](#): > > My principal problem with this decision is …that, having found the law unconstitutional, they didn’t strike it down, they simply decreed that it be _changed_… 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. ---
**Author:** ![Telcontar](https://avatars.discourse-cdn.com/v4/letter/t/3bc359/32.png) [@Telcontar](https://boards.straightdope.com/u/Telcontar)\ **Post date:** [February 3, 2004, 3:54pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/20 "2004-02-03T15:54:17Z")
> [@Weird\_AL\_Einstein](#): > > 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. 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](http://www.ibiblio.org/gaylaw/issue4/cox3.html) > [@The National Journal of Sexual Orientation Law](#): > > When confronted with cases that violated such statutory prohibitions, many courts have been willing to validate the marriage or, at least, to consider the particular incident of marriage at issue in the case and whether the marriage should be recognized for that purpose alone.50 For example, in Ethridge v. Shaddock,51 the Arkansas court upheld an out-of-state marriage that violated the Arkansas statute prohibiting marriages by first cousins. Finding that such marriages do not create “much social alarm,” it recognized the marriage since it was valid in the state in which it was celebrated.52 In In re Estate of Lenherr,53 the Court determined that violation of Pennsylvania’s paramour statute which prohibited marriage of adulterous partners during the lifetime of the former spouse did not prevent recognition of the marriage for the limited purpose of receiving certain estate tax benefits. The strong public policy in favor of recognizing out-of- state marriages combined with the fact that denial of the tax exemption would not deter adulterous conduct or spare the aggrieved former spouse led the court to conclude that the marriage was valid for estate tax purposes.54 In Miller v. Lucks,55 the Court recognized an interracial couple’s marriage for purposes of intestate succession, despite the presence of a provision in the Mississippi Constitution prohibiting interracial marriage, because the Court determined that the prohibition was intended to prevent interracial cohabitation in the state, not to void the marriage for all purposes.56 In In re Dalip Singh Bir’s Estate,57 the Court determined that public policy would not be negatively affected by dividing property between two wives involved in a polygamous marriage validly entered into in India, although it would have been negatively affected had cohabitation in the state occurred.58 > > Each of these marriages was recognized, despite violating explicit state statutes against incest, adultery, interracial marriage, and polygamy. Thus, refusing to recognize marriages by same-sex couples for any reason, even the marriage’s termination, goes beyond any refusal found in statutory or case law. The only conceivable reason for this difference in treatment is animus against marriages by same-sex couples that exceeds that against incestuous, adulterous, interracial, or polygamous marriages and which, under Romer, may be unconstitutional because it is directly at one group alone. [Next page](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979.md?page=2)