I just read the majority opinion. What I find interesting from a legal point of view is that both this case, Goodrich and the U.S. Supreme Court case on homosexual sodomy, Lawrence v. Texas*, find the challenged statutes unconstitutional based on a due process test, avoiding the question of equal protection.
In other words, both cases held that there is no rational governmental reason to prohibit the challenged conduct, gay marriage or homosexual sodomy. In Goodrich, the majority goes through the proffered bases for the ban, including marriage for procreation, a favorable setting for child rearing and preserving state financial resources, and finds that each of them provide no rational reason to limit marriage to mixed-sex couples.
These holdings are stronger than they would be if the found that the challenged conduct was discriminatory under the equal protection based on sex.
I wonder what the Massachusetts legislature will do.
If Ted Kennedy weighs in on this issue (and since he won’t ever again run for President, why not), he may be able to persuade people on the fence that amending the MA Constitution would be a travesty (as it would).
And I think people suggesting Karl Rove loves this, Karl Rove has a hard-on, etc., ad nauseum, demonstrate little faith in Americans to think for themselves on the issues. What with Will & Grace, Greg & Dharma, Queer as Folk/eye for the Straight Guy, etc., the American people are quite familiar with gays. Most people probably find it curious that their legislator’s position on the issue of same-sex marriage is murky.
Not sure I see the relevance. That might be true if this were a federal issue, but as it is, their grounds and their decision as the highest court in the state mean that the only way to change things is a constitutional amendment. How would the situation be different if they had based their decision on state equal protection rationale?
Didn’t we also go through this in 1993 when Hawaii’s Supreme Court found that denying marriage licenses to same-sex couples violated the Equal Protection Clause of their Constitution. While I agree this is a big case, it is not unprecedented.
IIRC, Hawaii then amended their Constitution to allow for the denial of marriage licenses to same sex couples. It will be interesting to see how Massachusettes voters will react.
And finally, there will definitely be an issue of comity and full faith and credit if Mass. allows same sex marriage. I haven’t researched it fully, so I’m not sure that any other state would be required to acknowledge a marriage in Mass. I honestly don’t know though.
While I fully support the right of same sex partners to have sexual relations and marry, I disagree completely that an finding under the Equal Protection clause based on discrimination on the basis of gender would make it “stronger.” In fact, it would be much “stronger” had the US Supreme Court recognized that sexual relations among consenting adults to be a fundamental right.
In addition, a finding based on equal protection on the basis of gender would be a legally weak decision.
Marriage ought not to be a matter of state intervention. The state should issue “domestic partnership licenses” that are used for insurance, tax, and other legal and commercial purposes. Marriage ought to be an exclusive provenance of religions and the spiritual state of marriage ought to be completely separate from the legal state of domestic partnership, handled by separate institutions and under completely seperate rules.
The state has no business telling religions what is and is not marriage. Religions have no business telling the state what qualifies for the legal benefits and costs of domestic partnership.
Mass. isn’t necessarily as liberal as its reputation has it - it voted for Reagan twice, after all, and for Republican govenors the last 3 times straight (although for nonideological reasons each time IMHO). The left wing is more organized and more vocal than in most states, sure, but that hardly means they dominate. The Catholic Church is far stronger politically (mostly indirectly, but directly too) than the Cambridge Trotskyite crowd. It is, IMHO, more sophisticated (or at least cynical) in the nature and use of tactical politics than most states. The most successful national campaigns all seem to have a political tactician/backstabber from Boston, for instance (Dubya’s is Chief of Staff Andy Card).
The Democratic Party domination of state politics also does not necessarily mean social liberalism, but organizational inertia built up since Curley’s defeat of the Brahmins - to get anything done or reach any high office you have to either be in or work closely with the Democratic institutions.
The argument does NOT go “Mass. voted for McGovern” => “all crazy hard lefties” => “must support gay marriage and not aborting gay whales in old growth forests” and so forth. All that voting for McGovern indicates is that the politically-sophisticated people of Massachusetts saw Nixon’s evilness sooner than most others.
It is not at all clear that the electorate would or would not ratify a proposed amendment, only that Finneran is too cautious to risk that if he can take care of it with simple legislation. The fact that the Court is even giving him the chance may just reflect their split vote - an attempt to put the problem back where it should be.
You know, the fact that people have (in Hawaii) and are planning on (in Massachusetts) amending their state constitutions (and the Federal Constitution) to REMOVE a right from a defined group of citizens is, frankly, totally against the concept of a Constitution. “We have to destroy the village to save it!”
I’m not sure I follow this line of argument. How is amending the Constitution totally against the concept of a constitution? This right, recognized now by the Massachusetts Supremes, was not recognized before now. It’s new. If the citizens of Massachusetts are surprised at the discovery that their constitution mandates the recognition of gay marriage, should they not have the chance to amend the constitution to return it to the previous state of affairs?
Or is the granting of rights a “one-way rachet” that can only be expanded, but never contracted?
How conveeeenient. That could be an amazingly simple method to bring the thumpers out to the polls in droves in the very bastion of liberal thought, and by the way vote against gay marriage supporter Howard Dean while they’re there.
I agree 100%. But that doesn’t solve the problem. Currently, our governmnet regulates marriage. That isn’t going to change. So, it’s going to come down to how the majority feels. As Minty pointed out, my numbers of roughly 50/50 are out of date, and there is now a pretty large majority opposed. My guess, and it’s only a guess, is that the pendulum will swing back to more of a parity situation. That will pit state against state as some state(s) will surely approve gay marriage in the not too distant future.
Bricker, the purpose of a Constitution is to safeguard rights, not to limit them. The only Federal Constitutional amendment that limits the right of the people to do something was Prohibition, and we see how well that worked. There’s a general disapproval (around here, anyway) of a flag desecration amendment for the same reason.
And, to my mind, yes…the granting of right can only rightfully be expanded. Attempts to remove rights once protected are wrong, IMO. Of course, I’m probably seen as a dangerous libertine by some people, too…
I never did understand the pendulum thing in relation to the sodomy law turnover. “We’re sympathetic as long as the things they do can still be made illegal, but if they get the right to do fag things, we’re gonna hate 'em again…”
It doesn’t sound like there’s much possibility of resistance to amending the Mass. Constitution but the rights of children is an interesting angle. Could Equal Protection of children be a valid basis for challenging the amendment on a federal level?
If so, he’d better stuff it back in. The Dem nomination should be sewn up before the Mass. primary anyway. If it weren’t, voting against Dean would mean voting for someone else, and who is that going to be if not Kerry? He’s pro-gay-rights himself.
The Bible-thumpers up here aren’t the Southern Baptist style, not in big numbers anyway, but Northern Catholic, and they usually vote anyway. This won’t affect electoral results much.
If you’re implying that Mass. has a chance of going for Bush in 11/04, please let me disabuse you of any such thought.
Dogface, marriage does have a lot of inescapable legal ramifications, in inheritance rights and medical-care decision rights and child-custody rights to name just a few. The state does have to have some involvement there, even if it’s just to keep track of who’s with whom. Unless you’re willing to strike those rights, you can’t say it’s none of their business.
Here, I’ll lay it out very plain, just in case anybody else just can’t get it:
1: Abolish the legal institution of “marriage”. The government has no place dictating to my Church, and if the government wishes to dictate what is and is not marriage, then the government is interfering in the Sacraments of my Church. What next, will they try to prohibit the use of wine in Holy Communion? Will they try to determine who is and is not “legally baptized”?
2: Institute the legal institution of “domestic partnership” that covers all the current legal “ramifications” handled by marriage. It is not actually “marriage” since it is a mere governmental function.
3: Leave marriage up to religion.
My own Church considers government recognition or lack of recognition of “marriage” to be irrelevant. Only the Church effects a marriage in the eyes of God. The government license is only acceptable to the extent that refusing to get it would impose undue hardship upon people.
I was referring to voter turnout nationwide, not just in Massachusetts. This is total red meat for the leaders of the religious right across the country.
Dogface: You’ve always been able to be married, or not, in a church, and that has always been a different creature from a marriage, or not, by the state. You can be married in your church and legally single, and vice versa. Don’t be confused by the state deputizing clergy to perform legal marriages, or by the use of the same word for two very different concept depending on context. What you want is what we’ve already got.
With the exception that a marriage by the state (and you can call it whatever you damn well please) is now available only to one man plus one woman. That’s what this debate is all about, not any religious aspects. I hope you’re now clear about that.