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Gay Marriage (Is) (Is Not) Legal in Mass.
As if planning a wedding was not challenge enough, pity the couple having to predict its legality. On Monday, the Massachusetts Supreme Judicial Court, in Schulman v. Attorney General, gave the green light to an initiative petition that would amend the state constitution to ban gay marriage. You may recall the SJC as the court that legalized gay marriage in its 2003 ruling, Goodridge v. Department of Public Health. Boston Globe reporter Scott Helman called this week's decision "a major victory ... to opponents of same-sex marriage." Lyle Denniston at SCOTUSblog provides the clearest overview I've read of the ruling. He explains:
"The sole issue in the case, at this stage, was whether the initiative petition would be barred from the ballot under the Massachusetts Constitution. The petition, drawn up by foes of gay marriage and certified for the ballot by the state attorney general, would declare that state and local governments in Massachusetts 'shall define marriage only as the union of one man and one woman.' ...
"Supporters of gay marriage sought to keep the measure off the ballot by claiming that it violated a provision of the state constitution saying that there can be no initiative petition that seeks 'reversal of a judicial decision.' In its unanimous decision Monday, the Supreme Judicial Court said that neither the plain meaning of the words 'reversal of a judicial decision' nor their intended meaning supports the challenge."
Another good overview comes from New York Law School professor Arthur S. Leonard at Leonard Link.
Justice Robert J. Cordy wrote the majority opinion. But much attention has focused on the concurring opinion written by Justice John M. Greaney and joined by Justice Roderick L. Ireland. As Denniston notes, both the majority and concurring opinions suggested that "there remain other potential state constitutional challenges to the measure." But Greaney and Ireland went further, adding a possible federal Constitutional challenge. Greaney wrote:
"The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form ... There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of theprinciples of liberty and equality protection by Art. 1 of the Massachusetts Declaration of Rights."
Writing at The Volokh Conspiracy, Eugene Volokh hones in on this concurrence, contending that its reasoning is "deeply wrong." He explains:
"The Massachusetts Supreme Judicial Court is saying that its judgments about equality and fairness under the Massachusetts Constitution trump not only the judgment of the legislature, but the judgment of the people amending the constitution itself. ...
"[H]ere the two judges are suggesting that the ultimate decisions are to be made by judges, and the people have no right to the final say on the subject. Under this theory, the judges end up being the ones who are sovereign, with the legal principles that they set forth being immune from control by the people. That, I think, would be a very bad result."
Volokh's post elicited a response from Martin Lederman, who sees the concurrence in a different light. Greaney and Ireland are not saying that the court's judgment trumps the people who amend the constitution, he says. "Instead, the Justices are saying that if the initiative passes, the Constitution will contain two 'apparently mutually inconsistent and irreconcilable' provisons -- each of which was ratified by the people."
"So the question then would become how a court should reconcile two mutually contradictory constitutional provisions, both of which were the handiwork of the people -- not whether the Court should prefer its own conception of the Good to that of the people."
Volokh's interpretation found an ally in none other than Harvard Constitutional law scholar Laurence H. Tribe. Tribe writes that he finds himself "in considerable sympathy with a good bit of what Eugene says" and reads the concurrence "less generously than Marty has read it." Like Volokh, Tribe says, he sees in the concurrence "more of the seeds of an imperious and self-aggrandizing, evin if unintended, assertion of judicial supremacy."
There will be plenty of time to debate the decision's impact. Before the proposed constitutional amendment could go on the ballot in November 2008, it must pass muster with a state constitutional convention that opens today. If 50 legislators approve it, it goes to a second constitutional convention next year, with another 50 votes needed for it to go on the ballot.
Meanwhile, if you are a gay couple planning a Bay State wedding for, say, December 2008, you might want to reconsider the date.
Posted by Robert J. Ambrogi on July 13, 2006 at 01:21 PM | Permalink
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