# Massachusetts court strikes gay marriage ban: Finds "no rational basis" for law. **URL:** \ **Category:** Great Debates\ **Created:** [November 18, 2003, 4:29pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921 "2003-11-18T16:29:00Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 18, 2003, 10:37pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/61 "2003-11-18T22:37:36Z")
Thanks for the research into the Full Faith and Credit issue. **Age Quod Agis**. From now on, I’ll try to do what I am doing also. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [November 18, 2003, 10:38pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/62 "2003-11-18T22:38:32Z")
1996 US Federal Defense of Marriage Act keeps this from making marriages legal thoughout the U.S., but hopefully it starts an irreversable trend. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 18, 2003, 10:38pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/63 "2003-11-18T22:38:46Z")
> [@](#): > > \*Originally posted by Rib Eye \* > This from Renee Landers, president of the Boston Bar Assocation on [washingtonpost.com](http://washingtonpost.com): > > “The process for amending the constitution calls for two successive legislatures to vote favorably on an amendment and for that amendment to be submitted to the voters after the legislative action is completed. At a minimum, this process takes 3 years. The earliest such an amendment could appear on the state ballot would be November 2006.” Having found a [somewhat cleaner version](http://home.earthlink.net/~mrob/pub/govt/ma-const.html) of the Massachusetts Constitution, it appears that you and Ms. Landers are correct. Which means this will still be a live issues a year for now, making Karl Rove a very happy person. ---
**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:** [November 18, 2003, 10:58pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/64 "2003-11-18T22:58:32Z")
> [@](#): > > \*Originally posted by Homebrew \* > \*\*1996 US Federal Defense of Marriage Act keeps this from making marriages legal thoughout the U.S., but hopefully it starts an irreversable trend. \*\* Outside of the provisions dealing with the benefits of marriage found in federal law (e.g., joint tax filing rates, etc), the DOMA is meaningless; it is utterly irrelevant to whether or not the other 49 states would have to recognize a homosexual marriage performed in Massachusetts. If the constitution requires such recognition, then no mere act of Congress can undo that requirement. Having said that, **A.Q.A.** is precisely correct that the full faith and credit clause will not mandate the recognition of homosexual unions in other states. As a supplement to **A.Q.A.**'s post, here is an argument I made in another thread on precisely that question: > [@](#): > > Take, for example, the full faith and credit (FFC) clause, which is the most commonly cited basis for the notion that other states will have to respect any given state’s election to allow gay marriage. The courts have clearly stated that the FFC clause does not require abrogation of any particular state’s individual 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). ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [November 18, 2003, 11:54pm UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/65 "2003-11-18T23:54:20Z")
Bricker, I’m curious about something you said that you might not have meant the way I’m interpreting it: > [@](#): > > \*Originally posted by Bricker \* > \*\*Given that a simple majority is needed, apparently, to amend the Massachusetts Constitution in the legislature and the electorate, and given the historical examples of Hawaii and Alaska, _I wonder if this isn’t cause for conservative celebration._ > \*\* Italics mine. Are you asserting that being conservative means being “anti-gay,” by the very nature of being conservative? That having that point of view on homosexuality is somehow expected (though not necessarily desired) when one is conservative? Do you see cause for YOU, as a conservative, to celebrate? From your previous posts, I’m not sure that you actually mean that. Freudian slip? Or did you simply forget to put “social” in that sentence? ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [November 19, 2003, 1:05am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/66 "2003-11-19T01:05:40Z")
Interesting, **Dewey**. Tell me, is the concept of illegitimacy still operative in this country’s legal system? I note also the prominent use of the term “legitimate” policy interests in the disclaimers about the FFC Clause. Does the legitimacy of the policy interest ever come up for review in these types of disputes? ---
**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:** [November 19, 2003, 1:21am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/67 "2003-11-19T01:21:13Z")
> [@](#): > > \*Originally posted by kaylasdad99 \* > \*\*Interesting, **Dewey**. Tell me, is the concept of illegitimacy still operative in this country’s legal system? \*\* Depends on context. There are constitutional proscriptions on certain policy choices that discriminate based on legitimacy. However, legitimacy is still a valid legal concept in situations like _Olmstead_ where there is an question of inheritance. Who is or isn’t an heir for bequests to children or intestacy purposes is certainly a legitimate avenue for policymaking. \*\* > [@](#): > > I note also the prominent use of the term “legitimate” policy interests in the disclaimers about the FFC Clause. Does the legitimacy of the policy interest ever come up for review in these types of disputes? \*\* Only in the broad topical sense, e.g., the definition of marriage is a legitmate policy interest. The underlying substantive policy choice won’t be reviewed for legitimacy because to do so would eviscerate the rule in play. State A doesn’t have to respect State B’s policy choice in a given area because State A is allowed to make a different choice. If State A can only choose one answer to that policy question, it means State A doesn’t really have a choice at all. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [November 19, 2003, 1:54am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/68 "2003-11-19T01:54:24Z")
Oh. Thanks. ---
**Author:** ![Jervoise](https://avatars.discourse-cdn.com/v4/letter/j/d2c977/32.png) [@Jervoise](https://boards.straightdope.com/u/Jervoise)\ **Post date:** [November 19, 2003, 2:32am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/69 "2003-11-19T02:32:34Z")
Your President has taken time from his busy London schedule to speak on this issue. [http://www.smh.com.au/articles/2003/11/19/1069027147337.html](http://www.smh.com.au/articles/2003/11/19/1069027147337.html) > [@](#): > > \*\*US President George Bush today condemned the decision by Massachusetts’ highest court that would allow same-sex marriages. > > “Marriage is a sacred institution between a man and a woman,” Bush said in a statement released in London, where he was on a state visit. > > “Today’s decision of the Massachusetts Supreme Judicial Court violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage.” \*\* ---
**Author:** ![Milum](https://avatars.discourse-cdn.com/v4/letter/m/ea666f/32.png) [@Milum](https://boards.straightdope.com/u/Milum)\ **Post date:** [November 19, 2003, 2:41am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/70 "2003-11-19T02:41:24Z")
As has become the mode, reality becomes the stuff of hind tit. The point of gay, queer, homosexual, activities is that their mock reproduction behavior is a dead end. Get your kicks, homosexuals, your life has meaning only in the context of the support that you give towards those who faithfully reproduce. But evenso I think that you all, overall, are of the best of humankind that breathes today. ---
**Author:** ![Rhum\_Runner](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@Rhum\_Runner](https://boards.straightdope.com/u/Rhum_Runner)\ **Post date:** [November 19, 2003, 2:58am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/71 "2003-11-19T02:58:20Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Not so: “[A] recent CNN/USA Today/Gallup poll suggest the Supreme Court ruling has prompted a backlash: The number of people who have endorsed the idea that homosexual relations should be legal has dropped from 60 percent to 48 percent since the ruling, and only 40 percent of Americans say they now would support civil unions for homosexuals.” That was in the wake of this spring’s sodomy ruling from the U.S. Supreme Court. [CNN.com - Bush wants marriage reserved for heterosexuals - Oct. 28, 2003](http://edition.cnn.com/2003/ALLPOLITICS/07/30/bush.gay.marriage/) > \*\* I guess Scalia was right, eh? 😉 ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [November 19, 2003, 3:13am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/72 "2003-11-19T03:13:43Z")
Gays may wish to consider that the Pubbies WILL be using the issue of gay marriage to get the teevee idjits all riled up around elecition time espeically if, as seems likely, the news on the jobs front and the Iraqi occupation continues to suck. It might be wise to consider backing off from this issue until, say, December 2004, at which point you’ll either have a more sympathetic federal government, or there won’t be much that the Pubbies can do with the issue for another three years. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [November 19, 2003, 3:13am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/73 "2003-11-19T03:13:48Z")
How exactly does the Dunce in Chief think that same-sex unions violate the sanctity of marriage? It doesn’t affect the sanctity of my marriage in the least. Yeesh what an ass that guy is. ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [November 19, 2003, 3:51am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/74 "2003-11-19T03:51:22Z")
Ever since the matter of whether same sex couples could be married to each other came into the public eye (mostly by way of people who were repulsed by the idea pointing with alarm) the question that comes to my mind is: who cares? That two men or two women hold them selves out as married, that one has a right of inheritance from the other and the right to elect against the will of the other, need to join in real estate transactions in order to release surviving spouses’ rights, can be held liable for the cost of the necessities of life provided to the other, that one can authorize the termination of life support for the other just doesn’t seem to have any significant impact on my life. Why on earth does anybody care? I certainly understand that people might be offended at the very idea of homosexual carnal relations and that they might well be something they would not care to do and something they would just as soon not even know about. It is an easy step from “I find homosexual sex to be distasteful or even disgusting,” to “things I find distasteful or even disgusting should be unlawful.” But for the recent Texas sodomy decision by the Supreme Court, if a majority of the voters/legislators shared that extreme a sense of distaste and disgust the thing could be rendered unlawful and criminal penalties provided, as it was and they were for Lord knows how long. However there are all sorts of things that I, and apparently a majority of other votes and legislators, find distasteful but which we put up with, such as lawful prostitution in the State of Nevada. Certainly, that homosexuals can have rights and obligations between them selves that will be honored, protected and enforced just like the rights, obligations and duties between my wife and me does not in any way diminish or alter any of the marital rights and duties between Mrs. Gelding and me. I am no less married today after the Mass decision than I was yesterday before the Supreme Judicial Court stuck their nose in this. The only thing I can see is that some might take the recognition of homosexual marriages as some sort of government approval of homosexuality. It isn’t of course, any more than the government approves of my marriage to Mrs. Gelding. Mrs. Gelding’s mother certainly has not had her opinion changed by any supposed government approval of our union. Why anyone who finds homosexuality distasteful should be persuaded that is it a good and admirable thing because of State recognition of its realty is beyond my feeble understanding. By the same token, I don’t see State recognition and being any sort of State endorsement of the institution as good and admirable. The basic question is: who is hurt by the recognition of homosexual marriage? If nobody suffers any hurt, why bother climbing up on the high horse and galloping off in four directions at once? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 19, 2003, 4:39am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/75 "2003-11-19T04:39:38Z")
> [@](#): > > \*Originally posted by Leaper \* > Bricker, I’m curious about something you said that you might not have meant the way I’m interpreting it: > . > . > . > Are you asserting that being conservative means being “anti-gay,” by the very nature of being conservative? That having that point of view on homosexuality is somehow expected (though not necessarily desired) when one is conservative? Do you see cause for YOU, as a conservative, to celebrate? From your previous posts, I’m not sure that you actually mean that. > > Freudian slip? Or did you simply forget to put “social” in that sentence? None of the above. I was referring to a conservative constitutional interpretation, a more literalist approach which disfavors the discovery of hidden, ne’er-before-seen rights in the constitution. As you correctly point out, there are plenty of conservatives who believe that small government is best, and therefore being gay or straight and who you choose to marry is no business of government’s. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [November 19, 2003, 4:47am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/76 "2003-11-19T04:47:48Z")
**Bricker** : So what distinguishes the conservatives who want a Constitutional amendment banning gay marriage (and would probably happily push one banning homosexuality altogether if they could) and the ones to whom such a thing would be an anathema? Which do you think more truly reflects the nature of conservatism, if either? And do you believe that the Constitution as written protects everyone (or at least those it needs to protect), even people that the Founding Fathers had no idea existed, or would have condemned out of hand, like gays? (Though I suppose if you’re a small government conservative, I suppose that question is irrelevant. Just curious.) ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [November 19, 2003, 4:51am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/77 "2003-11-19T04:51:52Z")
Oh, and one more thing (feel like Columbo, here): the quote of yours that I repeated implied (if I interpret correctly) that you believed that amending the Massachusetts constitution to limit marriage to a man and a woman was a good conservative gesture. Considering your reply to your answer relating to that quote, how does doing so(amending the Mass. constitution to limit marriage to heterosexuals) have any connection to a literalist reading of the Constitution? It doesn’t say anything about gay marriage. Sorry if I’m being confused, here. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [November 19, 2003, 5:08am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/78 "2003-11-19T05:08:09Z")
> [@](#): > > \*Originally posted by SuaSponte \* > \*\*Hogwash. The purpose of a Constitution is to establish the framework for governance and set forth the basic law of the land. > > Sua \*\* Weellll, the framers of the US Constitution specifically wrote down that the purpose of the document they were writing was to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty … Only one of those purposes is definitely concerned with the structure of the government (more perfect union) while the rest are about the well being of the citizens at large. It seems to me that any interpretation that promotes the liberty of the people and isn’t outright destructive of other purposes is to be encouraged whether the constitution being interpreted is is that of a state or of the US. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [November 19, 2003, 5:24am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/79 "2003-11-19T05:24:37Z")
> [@](#): > > \*Originally posted by Milum \* > **The wee State of Massachusetts …** Wee state? 2002 Population: Massachusetts = 6,427,801 Alabama = 4,486,508 [Source](http://www.census.gov/statab/www/part6.html) ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [November 19, 2003, 5:37am UTC](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921/80 "2003-11-19T05:37:43Z")
You know what, some Americans don’t deserve America. My only real hope is that someday, people who think that gays shouldn’t be allowed the same rights and responsibilities for their partnerships will know what it’s like to be a racist in today’s America: to know that they’d just better shut the hell up while they grow old and bitter, because history has passed them on. I don’t have much hope for the near term, because let’s face it, even those politicians who know in their hearts that this is wrong will never stand up and say it. We’l have to listen to patheticly content-free statements like “marriage is for a man and a woman” without further explanation from any but the fringe people willing to own up to the underlying reasons. They will deliberately confuse the civil and religious recognition of marriage in order to pretend that people’s civil freedoms are under threat. And they will win. The FMA will be one of the few Amendments that would actually restrict people’s liberty (the only other major one being the Income tax one) in the name of cutting a narrow slice of special privalege for “approved” families. [Previous page](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921.md?page=3) [Next page](https://boards.straightdope.com/t/massachusetts-court-strikes-gay-marriage-ban-finds-no-rational-basis-for-law/213921.md?page=5)