Jacob Levy asks a hypothetical question for “those most strongly opposed to the Massachusetts case”: What would be their view of the constitutionality of a state law that forbade marriages where one party was known to be infertile? I don’t know if I’m really the right person to answer the question, as I have not written much about Goodridge. I am, however, opposed to the decision, and can somewhat fairly be described as someone “currently in a panic about judicial tyranny” (a panic that in my case long predates Goodridge). For whatever it’s worth, here’s my answer: I think that the federal Constitution, properly interpreted, would not bar such a law. I don’t know enough about the constitution of Massachusetts to venture a judgment about its compatibility with the hypothetical law.
Let me go on to answer some hypothetical challenges that have been issued in other recent constitutional debates. If a courthouse in Alabama were to display excerpts from the Koran rather than the Decalogue, I would have no (federal) constitutional objection to that. And if, in some place where heterosexuals were a minority, the legislature outlawed heterosexual sex, I am not at all sure that there would be a valid (federal) constitutional objection to that, either. (There would, however, be a strong case for moving out of the jurisdiction.)
As Levy notes, this jurisprudential opinion is independent of any judgment about the wisdom or desirability of such policies.