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Legislative Options


In response to Stanley, while I agree in substance, I think that the technical distinctions are important in reading the SCOMAS opinion. First, its not quite right to say that the court is threatening to act–it already has acted, and has fundamentally altered the definition of marriage in Massachusetts. (“We construe civil marriage to mean the voluntary union of two *persons* as spouses, to the exclusion of all others” (emphasis added).) The court simply stayed (or delayed) the entry of the judgment–by which the substantive change in Massachusetts marriage law will take effect–for 180 days. SCOMAS complicated this unduly by mentioning the word “legislature” in this phrase. They could have left the word “legislature” out and had the same effect. At best, the SCOMAS included it to affirm that the legislature may act in the interim, and at worst (and more akin to what Stanley argues), the inclusion of the word “legislature” was meant to throw the gauntlet down to the legislative branch on this issue. This, however, is still a far cry from ordering the legislature to do anything, or remanding the case to the legislature, which would be something like a declaring a square circle. In either of those cases, the legislature would presumably be required to act. Here, however, the legislature need not do a thing, in which case the SCOMAS decision will take effect and change the definition of marriage in 180 days.

As best as I can tell, should the legislature choose to act, it may do so in one of three ways. First, the legislature could choose to reaffirm the traditional definition of marriage by simple statute. This would simply provoke an interbranch dispute, and given the way most legislatures and executives view coordinate branch construction, I can assume that the view of SCOMA would prevail. Second, the legislature could choose to adopt the view of the SCOMA, and enact new laws to reflect that view. Or third, the legislature could pass a constitutional amendment. If they succeeded in doing so in 180 days, then SCOMA would presumably be forced to vacate the current decision before it would be issued in light of the change in law.


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