# 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:** 9\ **Page:** 6
**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 11, 2004, 10:56pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/101 "2004-02-11T22:56:18Z")
> [@Homebrew](#): > > WTF? Williams Part 1 (1942) was not overturned by Williams Part 2. The issue was one of jurisdiction. Had Williams established residency in Nevada for a sufficient time before returning to North Carolina, the bigamy prosecution would have failed. > > _Williams (1942)_ and subsequent decisions clearly establishes that divorce degrees must be given Full Faith and Credit when the deciding court has jurisdiction. If you’re going to comment, make sure you understand what you’re talking about. (Perhaps you didn’t realize this was a two-parter.) Fair enough. FTR, here is [Williams I](http://laws.findlaw.com/us/317/287.html). And in the future, it would actually be helpful if you’d link to the cases you cite, especially when there are duplicate names involved (yeah, yeah, they cite to Williams I at the beginning of Williams II, but hell, that’s easy to zoom past). Also note I _did_ admit that there were cases extending FFC recognition to divorce decrees – I was just thinking of later cases like _Sherrer_ and _Coe_. It is still, of course, a slender thread upon which to hang your hopes. For one thing, divorce, unlike marriage, involves an actual judgment by a court of law, which is much closer to the principal purpose of the FFC clause. Secondly, there are ample precedents which limit the FFC’s applicability to certain aspects of divorce proceedings (notably, support orders), and many which hold the FFC clause inapplicable to other aspects of family law. But the most problematic aspect of extending the FFC clause is the wholesale manner in which it would serve to destroy the state’s legitimate interest in defining that institution. Consider: if Utah were to legalize polygamous unions, would the FFC clause demand the other forty-nine states recognize those arrangements? I hardly think so. (N.B.: this is not a comparison, value-wise, of gay marriage to polygamy; it’s just an illustration of the problem of reading the FFC clause so broadly.) ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [February 12, 2004, 3:56am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/102 "2004-02-12T03:56:49Z")
Will someone attempt to have their MA mariage reconized in another state under FCC? Lkely. Will it make a difference? From what some states’ positions seem to be on the gay mariage issue, it seems the answer will be “no.” But it raises a quesion for me. The MA consitution carries with it an equal protection clause that, I’ve heard it said, is not unlike the federal government’s. And, we know factually, the federal goverment’s law is the law of the land. State laws and constitutions can’t trump the federal government. Yet the MA SCJustices based their decision on MA law and constitutionality. Makes sense; after all, marriage is a state issue. But why can’t it be said that a state discriminating against gays violates the fed’s equal protection? How a state apportions its electoral college is a state’s business, no one would argue. But it is not within the realm of legality to suggest that Alabama could pas a law saying that its EC votes cannot be cast by a black man, or cannot be cast for a black candidate, et cetera. Marriage qua marriage isn’t a federal issue. But that is not to suggest the federal govrnment has its hands tied in the matter. Why couldn’t a pair of lesbians from Ohio take the issue up federally in that way? ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 12, 2004, 4:14am UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/103 "2004-02-12T04:14:37Z")
Sorry, I couldn’t find an on-line citation for Williams I. Thanks for providing it. > [@Dewey Cheatem Undhow](#): > > It is still, of course, a slender thread upon which to hang your hopes. On that point we can agree. In fact, I think as **erislover** suggests the decision will come down to the 14th Amendment’s protections of Equal Protection and Due Process. I don’t think we need to go over again why you don’t think it _should_ come down to that. But I think it will. Scalia and Thomas may be in your corner in regards to Original Intent, but the history of The Court and Substantive Due Process gives me hope. ---
**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 12, 2004, 3:04pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/104 "2004-02-12T15:04:59Z")
> [@erislover](#): > > But why can’t it be said that a state discriminating against gays violates the fed’s equal protection? How a state apportions its electoral college is a state’s business, no one would argue. But it is not within the realm of legality to suggest that Alabama could pas a law saying that its EC votes cannot be cast by a black man, or cannot be cast for a black candidate, et cetera. > > Marriage qua marriage isn’t a federal issue. But that is not to suggest the federal govrnment has its hands tied in the matter. Why couldn’t a pair of lesbians from Ohio take the issue up federally in that way? Short answer: because the principal reason behind the passage of the 14th amendment was the issue of racial discrimination in government, racial distinctions are subjected to strict scrutiny analysis. Barring a radical overhaul of equal protection jurisprudence, a challenge such as the one you suggest would only be subject to rational basis analysis, which is basically impossible to fail. If the _Lawrence_ opinion is anything to go by, you might get O’Conner on board with an equal protection claim, with her notions of a “more searching form” of rational basis analysis (whatever the hell that means), but not the rest of the court. And of course, you might stand a chance at using that back-door to judicial legislation, substantive due process – though I think Kennedy’s attempt to distance the _Lawrence_ decision from gay marriage in the majority opinion therein makes that unlikely. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 12, 2004, 3:42pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/105 "2004-02-12T15:42:32Z")
> [@Dewey Cheatem Undhow](#): > > rational basis analysis, which is basically impossible to fail. _cough_ _Romer_ _cough_ 😉 You knew I’d have to bring that up. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 12, 2004, 4:00pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/106 "2004-02-12T16:00:26Z")
> [@Homebrew](#): > > But I think it will. Scalia and Thomas may be in your corner in regards to Original Intent, but the history of The Court and Substantive Due Process gives me hope. Not without some change. Notice Kennedy’s commentary in _Lawrence_ that specifically distinguishes gay marriage; I doubt he’d be on board for that either. And of course, should Mr. Bush win a second term, and the makeup of the Court change by retirement or death and reappointment, I’d say it’s even more unlikely… (although not impossible, given the Souter Lesson). All of which points out my broken-record refrain: if you truly believe that the Court is the right way to create new law, then I assume you won’t be screaming foul when Bush replaces Ginsburg with, say, Pickering, and Souter with Ashcroft, and this issue comes before THAT court. ---
**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 12, 2004, 4:06pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/107 "2004-02-12T16:06:58Z")
> [@Homebrew](#): > > _cough_ _Romer_ _cough_ > > 😉 > You knew I’d have to bring that up. Yeah, and for the umpteenth time it doesn’t apply here, because the law in _Romer_ was deemed insufficiently connected to the proffered goal of the challenged legislation. Not so here – whatever you might think of the underlying rationale (be it tradition, childrearing, whatever), there’s no doubt that limiting marriage to opposite-sex couples is directly related to those rationales. And again, _Romer_ is notable because its result is so rare – a state has to try pretty goddamned hard to write a law so poorly that it fails rational basis. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 12, 2004, 4:50pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/108 "2004-02-12T16:50:02Z")
> [@Bricker](#): > > All of which points out my broken-record refrain: if you truly believe that the Court is the right way to create new law, then I assume you won’t be screaming foul when Bush replaces Ginsburg with, say, Pickering, and Souter with Ashcroft, and this issue comes before THAT court. What decision could they give? Only that the Constitution doesn’t guarantee marriage rights for same-sex couples. That still leaves your preferred option of an Amendment to secure those rights. Admittedly passing such an Amendment is unlikely to happen anytime soon. But that’s the only option in your view which sees The Law as sacrosanct. It’s the emergency backup in mine which sees the law as a means to higher goals of Equality and Justice. **Dewey** , let’s not rehash that arguement. I understand why you believe your interpretation. You look to this statement: > [@](#): > > Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i.e., respect for other citizens’ freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State’s interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons In part, you’re right. They said Amendment 2 did not related to its stated goal. However, you ignore the rest of the opinion that explicitly states there are other reasons why it failed. > [@](#): > > **First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board.** > [@](#): > > (b) In order to reconcile the Fourteenth Amendment’s promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e.g., Heller v. Doe, 509 U.S. 312, 319-320. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense Amendment 2 failed Equal Protection because it was overbroad and not related to the stated goal, as you state, but ALSO because it is a “denial of equal protection in the most literal sense.” ---
**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 12, 2004, 6:49pm UTC](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979/109 "2004-02-12T18:49:03Z")
> [@Homebrew](#): > > It’s the emergency backup in mine which sees the law as a means to higher goals of Equality and Justice. And I suppose you are the ultimate arbiter of what constitutes capital-E Equality and capital-J Justice? > [@Homebrew](#): > > **Dewey** , let’s not rehash that arguement. I understand why you believe your interpretation. No, indeed, let’s not. Suffice it to say you continue to make separate what are essentially one and the same. To say, in this case, that something “denies equal protection” and that something fails the rational basis test is essentially to say the same thing. Or, more accurately, something denies equal protection _because_ it fails the rational basis test. In short, you are demonstrably, factually wrong. [Previous page](https://boards.straightdope.com/t/help-me-with-the-massachusetts-decision-re-gay-marriage-judicial-activism/226979.md?page=5)