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.
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.
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.
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.
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.
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.
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.
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
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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