Bench Memos

Today’s Massachusetts Marriage Ruling

In November 2003, the Massachusetts Supreme Judicial Court, by a 4-3 vote, ruled in Goodridge v. Department of Public Health that Massachusetts statutory law defining marriage as the legal union of a man and a woman somehow violated the Massachusetts constitution. Today, that court, by a 6-1 vote, ruled that a Massachusetts statute that forbids marriage of a nonresident “if such marriage would be void if contracted” in the nonresident’s home state is enforceable. (The opinion is accessible under “Opinions” here.) The six justices in the majority divided evenly, however, on how to determine whether a marriage would be prohibited in the nonresident’s home state. The court dismissed the claims brought by residents of Connecticut, Maine, New Hampshire, and Vermont, but remanded to the trial court the claims brought by residents of New York and Rhode Island.

By preventing marriages in Massachusetts of nonresident same-sex couples from states in which so-called “same-sex marriage” is prohibited, today’s decision limits the impact of the Goodridge decision. In a weird post, Andrew Sullivan claims the decision goes much further, “destroy[ing] the last crumbling pillar of the argument for a federal constitutional ban on all legal protections for gay couples.” Let’s set aside Sullivan’s hyperbole about the effect of the proposed constitutional amendment. Today’s ruling has no significant impact on the case for the federal marriage amendment. Among other things, the ruling says nothing about the legal status of same-sex couples who were married in Massachusetts pursuant to the Goodridge decision and who then move to another state. Are other states required to recognize that marriage or not? Will activist courts strike down the Defense of Marriage Act? In addition, the judicial redefinition of marriage is threatened in other states.

Sullivan says that today’s ruling “seems to me to be the right one. If the Massachusetts legislature wants to repeal the 1913 law, they are entitled to. Until then, it’s the law.” I agree. But the same respect for legislative enactments, of course, could have—and should have—been displayed by the Massachusetts Supreme Judicial Court in Goodridge. Instead, that court, without any genuine grounding in the Massachusetts constitution, usurped the democratic processes. No one who defends that usurpation can plausibly maintain, as Sullivan claims, “to believe in the right of individual states to make their own decisions on marriage rights.” For any such right should be exercised by the people through their legislators, not by judicial fiat.

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