Mass Supreme Court Ruling legalizing gay marriage

[jim stone]

I've been trying to grasp the legal reasoning behind the
ruling. I thought people might want to know
how the court reached its decision.

As I understand it, the MA State Supreme Court
reasons as follows: gays in Mass have the right under the state
constitution to the equal protection of the law.
Now on the face of things, prohibiting them from
marrying each other violates their equal protection
rights. Heteros can marry the willing other of their
choice, not gays.

However, the court acknowledges that
such abridgement would be constitutionally
permissible if it is rationally linked to a permissible
state interest. This is the 'rational basis' test.
Now this test is deferential to state legislatures,
because virtually every law treats some class of
people unequally in some
sense (e.g. social security benefits go to the elderly,
not the young), so courts typically err on the side of latitude.
However the Court decides that the prohibition on gay
marriage doesn't pass the test--it is simply an arbitrary
discrimination against gays that furthers no
legitimate state interest. So the prohibition violates
the equal protection rights of gays.

There are three dissents--I believe the ruling was
four to three. Here are excerpts from the least technical one,
which is well worth reading, IMO, to grasp what's at issue.

SOSMAN, J. (dissenting, with whom Spina and Cordy, JJ., join). In applying the rational basis test to any challenged statutory scheme, the issue is not whether the Legislature's rationale behind that scheme is persuasive to us, but only whether it satisfies a minimal threshold of rationality. Today, rather than apply that test, the court announces that, because it is persuaded that there are no differences between same-sex and opposite-sex couples, the Legislature has no rational basis for treating them differently with respect to the granting of marriage licenses.1 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.

Based on our own philosophy of child rearing, and on our observations of the children being raised by same-sex couples to whom we are personally close, we may be of the view that what matters to children is not the gender, or sexual orientation, or even the number of the adults who raise them, but rather whether those adults provide the children with a nurturing, stable, safe, consistent, and supportive environment in which to mature. Same-sex couples can provide their children with the requisite nurturing, stable, safe, consistent, and supportive environment in which to mature, just as opposite-sex couples do. It is therefore understandable that the court might view the traditional definition of marriage as an unnecessary anachronism, rooted in historical prejudices that modern society has in large measure rejected and biological limitations that modern science has overcome.

It is not, however, our assessment that matters. Conspicuously absent from the court's opinion today is any acknowledgment that the attempts at scientific study of the ramifications of raising children in same-sex couple households are themselves in their infancy and have so far produced inconclusive and conflicting results. Notwithstanding our belief that gender and sexual orientation of parents should not matter to the success of the child rearing venture, studies to date reveal that there are still some observable differences between children raised by opposite-sex couples and children raised by same-sex couples. See post at - (Cordy, J., dissenting). Interpretation of the data gathered by those studies then becomes clouded by the personal and political beliefs of the investigators, both as to whether the differences identified are positive or negative, and as to the untested explanations of what might account for those differences. (This is hardly the first time in history that the ostensible steel of the scientific method has melted and buckled under the intense heat of political and religious passions.) Even in the absence of bias or political agenda behind the various studies of children raised by same-sex couples, the most neutral and strict application of scientific principles to this field would be constrained by the limited period of observation that has been available. Gay and lesbian couples living together openly, and official recognition of them as their children's sole parents, comprise a very recent phenomenon, and the recency of that phenomenon has not yet permitted any study of how those children fare as adults and at best minimal study of how they fare during their adolescent years. The Legislature can rationally view the state of the scientific evidence as unsettled on the critical question it now faces: Are families headed by same-sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes? Our belief that children raised by same-sex couples should fare the same as children raised in traditional families is just that: a passionately held but utterly untested belief. The Legislature is not required to share that belief but may, as the creator of the institution of civil marriage, wish to see the proof before making a fundamental alteration to that institution.

(T)he opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach. For example, if the issue were government subsidies and tax benefits promoting use of an established technology for energy efficient heating, the court would find no equal protection or due process violation in the Legislature's decision not to grant the same benefits to an inventor or manufacturer of some new, alternative technology who did not yet have sufficient data to prove that that new technology was just as good as the established technology. That the early results from preliminary testing of the new technology might look very promising, or that the theoretical underpinnings of the new technology might appear flawless, would not make it irrational for the Legislature to grant subsidies and tax breaks to the established technology and deny them to the still unproved newcomer in the field. While programs that affect families and children register higher on our emotional scale than programs affecting energy efficiency, our standards for what is or is not "rational" should not be bent by those emotional tugs. Where, as here, there is no ground for applying strict scrutiny, the emotionally compelling nature of the subject matter should not affect the manner in which we apply the rational basis test.

In considering whether the Legislature has a rational reason for postponing a dramatic change to the definition of marriage, it is surely pertinent to the inquiry to recognize that this proffered change affects not just a load-bearing wall of our social structure but the very cornerstone of that structure. See post at - (Cordy, J., dissenting). Before making a fundamental alteration to that cornerstone, it is eminently rational for the Legislature to require a high degree of certainty as to the precise consequences of that alteration, to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice. The court today blithely assumes that there are no such dangers and that it is safe to proceed (see ante at - , an assumption that is not supported by anything more than the court's blind faith that it is so.

More importantly, it is not our confidence in the lack of adverse consequences that is at issue, or even whether that confidence is justifiable. The issue is whether it is rational to reserve judgment on whether this change can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our society. Absent consensus on the issue (which obviously does not exist), or unanimity amongst scientists studying the issue (which also does not exist), or a more prolonged period of observation of this new family structure (which has not yet been possible), it is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that that redefinition will not have unintended and undesirable social consequences. Through the political process, the people may decide when the benefits of extending civil marriage to same-sex couples have been shown to outweigh whatever risks -- be they palpable or ephemeral -- are involved. However minimal the risks of that redefinition of marriage may seem to us from our vantage point, it is not up to us to decide what risks society must run, and it is inappropriate for us to abrogate that power to ourselves merely because we are confident that "it is the right thing to do." Ante at (Greaney, J., concurring).

As a matter of social history, today's opinion may represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of constitutional jurisprudence, however, the case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition. I fully appreciate the strength of the temptation to find this particular law unconstitutional ? there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated; the inability to marry has a profound impact on the personal lives of committed gay and lesbian couples (and their children) to whom we are personally close (our friends, neighbors, family members, classmates, and co-workers); and our resolution of this issue takes place under the intense glare of national and international publicity. Speaking metaphorically, these factors have combined to turn the case before us into a "perfect storm" of a constitutional question. In my view, however, such factors make it all the more imperative that we adhere precisely and scrupulously to the established guideposts of our constitutional jurisprudence, a jurisprudence that makes the rational basis test an extremely deferential one that focuses on the rationality, not the persuasiveness, of the potential justifications for the classifications in the legislative scheme. I trust that, once this particular "storm" clears, we will return to the rational basis test as it has always been understood and applied. Applying that deferential test in the manner it is customarily applied, the exclusion of gay and lesbian couples from the institution of civil marriage passes constitutional muster. I respectfully dissent.

[fiddling_tenor]

I heard the story driving home from work last night. All I can do is scratch my head.

[PhilO]

Thanks Jim. Many of us don't take the time to look closely at such decisions. I find the dissent somewhat disingenuous and not quite logically sound. It seems cloaked under the cape of "some of my (our) best friends are gay." Furthermore, the analogy to scientific invention approval is ludicrous on its face. I think that he really strayed from his initial premise, i.e., showing how this decision failed to recognize that abridgement is rationally linked to a permissible state interest. His rationality seems to be a lack of scientific studies to show that gay marriages are in the best interests of the state. Heck, sometimes I'm not sure hetero marriages can be shown to pass that test.

I think as with many constitutional law decisions, you'll find that the decisions are pre-decided on what the gut feeling is and then a bunch of pages long balderdash (love that word) ensues to justify somehow that gut feeling.

We do live in a strange world and country where no one seems to have a life of their own; we're all tied up in stupid reality shows, whether others should marry others, and the baring of some idiot's breast publicly.

There are just too many important issues, injustices and too much hypocrisy (e.g., Philip Morris commercials regarding quitting or not starting smoking) for me to get beyond my gut feeling that this is a false lightning rod emotional bias issue that is way down the line of what threatens our society and the world. I'd rather hear that let people marry whom they choose, assuming they're of age.

Regards,

PhilO

[Jack]

You know, the world is finally waking up and realising that gay people deserve full and equal civil rights just like everybody else.

Slowly, but surely.

[elendil]

Apropos the alleged reasoning involved, the statement of a presidential candidate, in a slightly different context, may be relevant. It goes toward the role of courts in general within our system of government:

If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

A pat on the back for anyone who cares to name that candidate.

[carrie]

Lincoln. But I slipped on some ice last night so don't pat my back too hard.

I'm with Cranberry all the way on this one.

Carol

[peeplj]

I slipped on some ice last night so don't pat my back too hard.

Ouch! I hope you're ok!

I'm with Cranberry all the way on this one.

Carol

I am as well.

--James

[Crysania]

You know, the world is finally waking up and realising that gay people deserve full and equal civil rights just like everybody else.

Slowly, but surely.

Far too slowly...but it's about time that it's starting to change.

~Crysania

[elendil]

cskinner wrote:

Lincoln.

Yow! Fastest post in the west!

I thought I'd stump people at least briefly (hah-hah, no legal pun intended) with that one.

I thought that boy was on to something re our system of government.

[susnfx]

My personal feelings on this one will remain private.
But whether you agree or not, it does open doors.
Next up: polygamy. Don't laugh.

[peeplj]

My personal feelings on this one will remain private.
But whether you agree or not, it does open doors.
Next up: polygamy. Don't laugh.

Actually, you raise a good point.

Moving religious objections aside (as you should, in a secularly-governed state), why is it in the state's best interest that polygamy be illegal?

--James

[glauber]

Some of my best friends are gay!

[Wombat]

Some of my best friends are married.

[TomB]

Some of my best friends are gay, others are married, others are
"civil unionized" gays.

All the Best,

Tom

[Seth]

I think that this ruling will be made more sound as time goes on. Barring, of course, any constitutional changes that may come up along the way. I feel that the data will come back showing that gay couples can raise children just as well as straight couples, and they will do so under much more scrutiny. No straight parent (except those who have set their own precident) will have as many people watching them for mistakes as a gay parent will.

I think good points are made though, of the floodgate that may or may not open after this. A convicted polygamist has already filed an appeal last year based on the recent rulings in favor of "alternative" households. An American senator (Santorum I think) went on record questioning whether or not you could even prosecute people for interspecies relationships after this. His were hate filled and biased remarks to be sure, but I can see a grain of reality in them.

The problem is, we are trying to take religion out of a system that is religiously based. And no comments about seperation of church and state please. America is still a Christian country. And please don't think that I support this, it's just a fact to be dealt with.


Seth