C’mon, man. The wording of the 2 constitutions may not be identical, but the substantive meaning is, as the MA ruling (based on broad, fundamental principle, not the narrow word-chopping you favor) makes clear. It also uses federal cases decided under the federal constitution (i.e. Loving and Brown) as precedents for making a state-constitution ruling. Politically, they also were certainly aware of a potential overruling by the Feds, and may well have tailored their reasoning to resist that. If the rulings by the competent bodies aren’t worried about that distinction, why are you?
Obviously the MA ruling applies only in MA - did anyone say otherwise? Rulings in other states are the problem of the other states, and any ensuing nationwide inconsistency is an issue for federal courts. What could be wrong with anticipating and addressing the issues in potential future federal rulings?
Long, long ago, deep in the bowels of history: People of Massachusetts, in their infinite wisdom, write a constitution. The legislature of that great state pass many many laws, including those concerning marriage. At this time, the only conceivable interpretation or marital arrangement would be one man, one woman.
Much later: Legislature and People of Massachusetts, in their infinite wisdom, amend the aforementioned constitution with many fine ideals forbidding certain forms of discrimination (at least without a darned good reason), the creation of second class citizens, etc. At this time it is highly unlikely that same sex unions are on anybody’s mind.
Fairly recently: The legislature or a specific department of the Massachusetts state government writes regulations which explicitly forbid same sex marriages under the auspices of Massachusetts state laws. (or only allows one man/one woman marriages)
Very recently: A case is brought before the Supreme Court of Massachusetts noting the discrepancy between the rules and the constitution, as amended. The justices, assuming the people and legislature of the state were indeed serious when they amended the constitution, agree that there is such a discrepancy. As such it turns the ball back over to legislature to resolve the problem within a reasonable amount of time (whether by allowing gay marriage, coming up with a decent legal rationale for the no-gay marriage restriction, or abolishing marriage outright).
To me at least the justices took pretty much the only honorable course of action. The only possible flaw I see is that the six-month time frame of the decision prevents the state from amending its constitution (which is, at minimum a three year process as I understand it - pass the legislature twice then a referendum or some such). Although I can certainly understand the court not wanting to allow an injustice (under current Massachusetts constitutional law) to stand for a long period before a determination can be made as to whether or not the people and legislature really meant it when they amended their constitution with such high sounding ideals.
Doesn’t matter. This is a state court interpreting a state constitution. It has literally zero binding effect on the interpretation of the federal constitution (though like any decision, its reasoning may be considered persuasive by other courts). This has no more impact on the federal judiciary or federal constitutional law than, say, the free speech elements of the New York state constitution, which has been interpreted as granting far broader protections than the federal constitution’s first amendment.
Furthermore, my point was about the FFC clause, which your posts simply do not address.
Impossible. Cannot happen. The federal judiciary cannot overrule the Massachusetts court on this. Just as state courts do not create binding interpretations for federal law, neither do federal courts create binding interpretations of state law. The Massachusetts high court is considered the final authority on what the Massachusetts Constitution means, and not even the US Supreme Court can alter their proclamations on that subject.
The only way the federal judiciary could possibly impact the Massachusetts decision is if that decision conflicted with either a federal statute or treaty or with the federal constitution. Since the decision clearly does not conflict with either, the federal judiciary cannot affect this decision one whit.
The job of the courts – any courts – in America is to apply the law of this country to cases brought before them. Implicit in that task, as John Marshall made clear 200 years and a few months ago, is the idea that a grundlag – a law that is specifically defined as being the foundational law of a jurisdiction – supersedes statute law written under its aegis and contradictory to its terms.
Whatever the writers of the Massachusetts constitution may have contemplated about marriage, heterosexual or otherwise, as they wrote, it provided for equal rights among the citizens of the Commonwealth.
When a case challenging the existing marriage statute of the State under the grounds that a gay couple would not receive equal rights as a straight couple under it, the Supreme Judicial Court examined the language of the statute and of the constitution, and found that claim justified.
Their obligation was therefore to declare that the statute was void insofar as it was used to deny gay couples the right to marry each other under Massachusetts law. Realizing, however, that to issue such a ruling so as to give immediate effect to it would be to create public policy on a controverted issue, they ruled as they felt themselves obliged under the canons of judicial review – the law conflicts with the state constitution – and then suspended that ruling’s taking effect for six months, in order that the General Court – the state legislature – might resolve the conflict. Please note that they did not order the General Court to change the law, or to amend the state constitution – they simply said that the statute as it stands conflicts with the guarantee of rights in the constitution, and they are therefore bound to regard it as of no effect as a means of barring gay marriage. It is the General Court’s job to resolve that conflict by legislating – either proposing an amendment to the state constitution that would allow the law to stand, or revising the law to bring it into conformity with the constitution.
The SJC did not force the General Court to do anything – but rather did their job under the standards of American jurisprudence. As I’ve said before, every time a court finds a man guilty of a crime, or rules that a contract is enforceable, they are making law – and they’re supposed to do that. What conservatives bitch about is judges reading their own personal beliefs into the law – and, unless you can show me how allowing some people to legally marry those with whom they fall in love and prohibiting others from doing so with state recognition of the marriage constitutes granting equal rights under any reasonable meaning of the term, it’s clear that the Massachusetts court did not do so.
The feds could certainly override the Massachusetts Supreme Court if they relied on federal case law in reaching their decision. They did not, of course.
If the state court’s ruling rests on federal grounds, then the Supremes can overrule them.
Of course, they did not. They used federal case law as an aid to their analysis. They did NOT conclude that federal case law compelled their decision. And a good thing for you that they didn’t, because, as I say, if they had, the Supremes could act.
No wonder a redefinition of the word “marriage” doesn’t bother you. You just redefined the verb “to make” so that in measn “to interpret” or “to apply”. It doesn’t. It means “to create” (as in “something new”). If you’ve said this before and folks around here let you get away with it, I’d be pretty surprised.
They did not redefine marriage per se. They insisted that the laws covering state-sanctioned marriage must apply equally, that one could not avoid the constitution through such semantics. I do not believe that constitutes “redefinition” as I understand the word. Certainly they do not argue with the word “marriage” generally implying “between a man and a woman.”
They applied the state constitution regarding already existing rights and found a discriminatory law in conflict.
John, as used from the time of Blackstone on (if not centuries before, a case I’d be pleased to argue), “law” means the assemblage of binding, enforceable custom under which a society lives, not “the particular enactments of a legislative body.” The very useful terms “statute” or “statute law” express the latter.
A judge who merely interprets law would rule “Okay, it sounds to me like you’ve proved that Honest Joe’s Used Cars, Inc., gypped you out of $1,000. I rule that he actually did. But I can’t issue an order that would enable you to recover that money – that’s making law.”
And I’ll wager whatever you like that any practicing lawyer on this board would defend my use of “law” to incorporate judicial decisions – pick one and ask him/her to respond to this thread with his/her opinion.
It’s buying into a demagogic conservative anti-judicial-activist stance to restrict the meaning of “law” to “those statutes that the legislatures pass.”
OK, although I’d also wager that most laymen, like myself, use the term “law” to mean “statute law”. But your point is well noted, and it’s good to be precise in debates like this one.
Well, yeah, if the facts are somehow different than they actually are, my post would be inaccurate. But they aren’t – it’s a decision premised wholly on state law, and therefore absent a conflict with federal statutory, treaty, or constitutional law, there is absolutely zero that the federal judiciary could do to alter the decision. That’s why I wrote “the Massachusetts high court is considered the final authority on what the Massachusetts Constitution means.” I think I was reasonably clear on that point.
Ref. Bush v. Gore as just one example to the contrary.
The Defense of Marriage Act, already a federal statute, “clearly” *does * “conflict with” this state case, although a little indirectly.
Other than that, what you just said there is exactly what I was trying to explain to you, in your efforts to prove me wrong about something. No state government, in any branch, can violate the provisions of the federal constitution, obviously - meaning that a state SC has to rule in compliance with *both * constitutions. When there is a conflict that cannot be resolved, the federal one even takes precedence. When they both address the same topic, and that topic is the basis for a ruling, they cannot avoid considering federal requirements even though they’re a state court (ftr, both constitutions discuss both equal protection and due process - it doesn’t matter which you choose, or both, for purposes of this subject). If the state SC’s reasoning is subject to federal review, it is not only appropriate but necessary for them to explain their ruling in federal terms. And, as has already been pointed out to you, they did so. But why, then, are you intent on asserting a separation of the concepts where there is not and cannot be one? Simple argumentativeness again?
It should be pretty frickin’ obvious that the differences in states’ treatment of marriage is going to head to federal court at some point (and thanks for yours and Bricker’s kind condescension in mentioning that indirectly in brief subjunctive clauses, guys - you are accepting the argument itself that way, ya know). What the hell is wrong with a state SC’s ruling addressing those inevitable federal arguments in its own text? They pretty much *have * to.
The rest of the posts of both of you are not responsive either to the topic or to my earlier reply to you, so go enjoy yourselves.
Not to provoke an argument against you on a topic on which we are, amazingly enough, in agreement ;), but to construe Elvis’s point somewhat differently than you did:
It may very well be true that the Mass. SJC constructed their decision carefully to rule exclusively on matters germane to Commonwealth law, specifically to avoid the possibility of an appeal from them to Federal courts. Knowing your distaste for Mr. Justice Kennedy’s “right to autonomy in personal relationships,” I can still contend that it would have been quite possible for the SJC to found their ruling in the rationale constructed in Lawrence, extending it to cover the application of the relevant Commonwealth statute. But such a ruling would invoke Federal concerns, and expose their ruling to review by SCOTUS. By founding it exclusively on the constitutional law of the Commonwealth of Massachusetts, without invoking any Federal question whatsoever, they left themselves as the court of last resort as regards this case.
The latter was in essence what you were saying. But I understood Elvis to be suggesting that they avoided any reference to Federal questions at least partially specifically in order to avoid an appeal in the Federal system from their decision. And that makes sense to me.
Quite the opposite, friend of many carps. The MA decision will almost force a federal review of DOMA at some near-future point. The MA justices seemed to be aware of that and addressed the federal-constitution issues by citing federal cases in reaching a state decision, and in doing so on the basis of the broadest possible principles of *both * of the constitutions they must comply with, and not narrow, technical ones that can arise from uncovering trivial differences.
Where **Dewey ** gets this idea that state law can violate the federal constitution with impunity, I know not. That’s been settled since the Civil War.
No, that is not an “example to the contrary.” Bush v. Gore did not purport to find error in the Florida Supreme Court’s interpretation of the Florida constitution; it found that the Florida Supreme Court’s order violated the equal protection provisions of the federal constitution.
No, it does not. The DOMA has essentially two parts: (1) a statement that no state has to recognize another state’s gay marriage law (a provision which, incidentally, doesn’t actually change the pre-DOMA status quo), and (2) a rule that federal benefits need not be extended to gay marriages recognized in any given state. There is no conflict with the Masssachusetts ruling. Massachusetts is free to allow gay marriage. The DOMA dosn’t prevent them from doing that. It does prevent parties to a gay marriage from receiving federal benefits accruing to married couples, and that’s all.
While it is true that no state law, including state common law and state constitutional law, can conflict with federal statutes or the federal constitution, there is no such conflict here. And again, a state constitution can provide for greater protections than the federal constitution (as again, New York does in the area of free speech).
Again, true, but irrelevant on these facts. There is no conflict here.
This is 100% false. Just because a state constitution and the federal constitution contain overlapping subject areas does not mean a state court is obliged to address the federal areas of overlap when interpreting their state constitution. State courts interpreting state constitutions only need concern themselves with federal law when there is a conflict between the two.
Consider free speech (again). New York provides a higher degree of free speech protection than does the federal constitution. If it wanted to, New York’s courts could have interpreted their state constitution as providing less free speech protection. Either interpretation would be fine, because it would not conflict with the federal constitution’s first amendment. If New York provided less protection, then the federal constitution would effectively act as the minimal level of constitutional protection, and New York residents suing for free speech violations would bring their claims under the federal constitution. Since New York provides greater free speech protections, a New York resident suing for free speech violations is better served bringing claims under the state constitution.
But again, in either case, there is no conflict at play. New York can choose either interpretation without conflicting with the federal constitution, and New York state courts need not address issues of federal constitutional law in choosing how to interpret their own constitution.
The Massachusetts court’s reasoning is not subject to federal review. They did not premise their ruling on any aspect of federal law, there is no conflict with federal law, and the Massachusetts state high court is the supreme arbiter of the meaning of the Massachusetts constitution.
No, they didn’t. They looked to other court decisions, including federal court decisions, for persuasive authority – i.e., for examples of reasoning they found compelling. The could also have cited to law review articles or scholarly treatises for that purpose if they had so chosen. The mere appearance of a citation to federal cases does not mean a state court opinion is subject to federal review – you have to look at how that citation is used.
I’m fighting ignorance. Sadly, I appear to be losing.
Again, the Massachusetts court does not address “the differences in states’ treatment of marriage” – they make no mention of the FFC clause, which is the operative clause for determining when one state must honor the laws of another. And even if they did, it would be mere dicta, because again, state courts cannot set binding interpretations of federal law.
The Virginia constitution guarantees that no person be twice in jeopardy for the same offense, in language almost identical to the federal constitution.
Now, hypotheitcally, Virginia finds that its constitution provides an absolute bar against any kind of second trial for the same offense, even if the first trial ended with a mistrial or was overturned on appeal for some error after a guilty verdict.
That’s a huge reach past the protections of the federal constitution, which, with identical language, permits a second trial after a mistrial, and after a reversal for error at the first trial’s guilty verdict.
Quiz, Elvis1Lives: if Virginia did find such a right in its constitution, could the federal courts overturn it, since they are announcing a rule for which there is already a federal rule - a federal rule with which they are now in conflict?
Rick
PS - Dewey: I said what I did because you posted:
This quote didn’t seem to make clear that merely basing the state law decision on federal grounds was sufficent to open the door to federal review… so I thought the clarification for the reader was in order. As we both correctly pointed out, that did not happen.
Except that isn’t what Elvis is saying. He’s saying that the Massachsetts court did in some way address some aspect of federal law because they were “concerned about being overruled” by the federal courts. Which is absurd – again, that literally cannot happen because the decision was premised wholly on state law and because there was no conflicting federal law at issue.
From the ruling released yesterday, it seems that the court is insisting the legislature ensure that when homosexuals marry in MA, they marry the exact same way as a straight couple would. In effect, the marriage license would not really come under different legislation.
So if Ohio, for example, as a paragon of equality and justice, didn’t want to recognize a gay marriage, and MA makes no distinction between gay and straight marriage, would Ohio be compelled to ignore all MA marriages, or can they actively select where the MA law patently doesn’t?
