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Who Rules in Massachusetts?
by William J. Watkins
18 February 2004Triangle

The recent shenanigans of the Massachusetts Supreme Court with regard to gay "marriage" raise serious questions about where ultimate sovereignty resides in our system of government.

The squabble over who can marry whom in Massachusetts continued last week.  In an advisory opinion, the Massachusetts Supreme Court further elaborated on its decision in Goodridge v. Department of Public Health

By way of background, Goodridge was a suit filed by fourteen plaintiffs from five Massachusetts counties alleging injury because local government officials refused to issue them marriage licenses.  The licenses were denied on the grounds that civil marriage was limited to opposite-sex couples in Massachusetts.  The case was eventually heard by the Massachusetts Supreme Court.

In reviewing Massachusetts’s marriage laws, the Goodridge Court asked whether the prohibition against same-sex marriage was rationally related to a legitimate state objective.   Citing the Massachusetts Constitution’s due process and equal protection guarantees, the Court held that the denial of a marriage license to a same-sex couple was irrational.  In so doing, the Court abandoned the common law definition of marriage as being between a man and a woman.  The Court gave the legislature 180 days to make the necessary alterations in the state’s laws.  

Fast forward to February 2004.  The Massachusetts Senate drafted Bill No. 2175, entitled “An Act relative to civil unions.”  In an effort to extend the rights and benefits of marriage to homosexual couples, the bill declared that “spouses in a civil union shall have all the same benefits, protections, rights, and responsibilities under law as are granted to spouses in a marriage.”  The only difference in the status of the two sets of couples would be the label attached.  Homosexuals would be united in “civil unions” whereas heterosexual couples would be united in “marriages.”  The Senate then asked the Supreme Court for an advisory opinion on whether Bill No. 2175 satisfied the law created by Goodridge.    

In the opinion released on February 4, 2004, the Court began by noting that, as in Goodridge, it was applying the rational relationship test to Bill No. 2175.   After a brief examination of the provisions of the civil union bill, the Court held that “[t]he same defects of rationality evident in the marriage ban considered in Goodridge are evident in, if not exaggerated by, Senate No. 2175.  Segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to advance or ‘preserve’ . . . the Commonwealth’s legitimate interests.”   Thus, the Court sent the legislature back the drawing board in its efforts to comply with Goodridge.
Of note is a very clear message sent to the people of Massachusetts and their elected representatives.  In the concluding paragraphs of the advisory opinion, the Supreme Court averred that “[c]ourts define what is constitutionally permissible, and the Massachusetts Constitution does not permit this type of labeling.”  In other words, the Massachusetts Supreme Court is the ultimate sovereign in the state.  The Court, and not the people, decides what the fundamental law is.

No doubt the heroes of Lexington and Concord turned in their graves upon hearing this pronouncement.  We must remember that in the Declaration of Independence one of the central complaints of the colonists was that the King had abolished "our most valuable Laws" and had suspended "our own Legislatures." The colonials placed such a high value on local self-government that they were willing to war against the mighty British Empire.  Indeed, this dispute over the locus of sovereignty (colonial legislatures or the British Parliament) was the impetus behind the American Revolution.  

While some form of judicial review can be a positive, judges should strike the act of the people’s elected representatives only on the rarest of occasions.  With frequent elections, the people possess the power to boot out legislators who make bad policy.  When unelected judges delve into the realm of policy-making, there is little the people can do.  

And the Massachusetts Supreme Court was certainly making policy with Goodridge and the advisory opinion.  The Court expressly stated that it was examining the marriage laws and the civil union bill under the “rational relationship test.”  This standard is the least exacting form of judicial scrutiny and most statutes reviewed using this standard are upheld.  Under the rational relationship test, the court does not strike laws which it believes are unwise, silly, or inane, but only those that are irrational. The rational relationship test is simply judicial recognition that absent a specific constitutional prohibition, the people have the right to embody their opinions in law.  This, of course, is the very essence of a democratic government.

One’s beliefs about homosexuality and marriage aside, a ban on same-sex marriage is not irrational.  Nor is legislation that permits a same-sex couple to marry irrational.  A reasonable legislator could conclude that homosexual marriage threatens the institution of the family, which many view as the foundation of a free society.  Or, the same legislator could conclude that in the modern world the benefits conferred because of marital status (e.g., taxation, health benefits, and inheritance) are so important that the notion of a civil marriage must be altered to catch up with the times.  Or, a rational legislator could conclude that marriage is such a personal decision that government should get out of the marriage business and leave the matter to churches or contract law.  I prefer this third option, but believe that the other two options are not irrational.

The same flaw is present in the advisory opinion’s treatment of the label “civil union.”  A reasonable legislator could conclude that Massachusetts needs to distinguish between homosexual unions and heterosexual unions because the former are not recognized as legitimate by the federal government or other states.  The different labels could aid in the establishment of state programs to benefit same-sex couples and their children when these couples are denied, for example, federal Social Security or health care benefits because they are not “married” under the federal standard.  While different labels are not essential in creating such programs, they do not have to be.  Under the rational basis test the Court must ask only if there is some conceivable basis for the distinction.

The beauty of democratic government with the guarantee of free speech is that we may change our minds and our laws as dictated by the marketplace of ideas.  Society benefits from such a discussion and issues can be settled to the satisfaction of both sides.  When courts take issues such as gay marriage away from the people and their representatives, democracy runs the risk of atrophying and seldom does the losing side retire peacefully from the field. 

The recent shenanigans of the Massachusetts Supreme Court raise serious questions about where ultimate sovereignty resides in our system of government.  Right now it seems that the courts have the upper hand.  Of course, the British Parliament once had the upper hand against the colonial legislatures too.  Perhaps it is time that the people remind the courts about the first principles of self-government.

William J. Watkins, Jr., is an attorney practicing in Greenville, South Carolina and a research fellow at the Independent Institute
. His latest book is Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy.

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