Here’s William Duncan from the Marriage Law Project:
Although I’d like to believe that the court has left some room for the
legislature, I can’t find that in the opinion. In the last two
paragraphs of the majority opinion, the court says: “We construe civil
marriage to mean the voluntary union of two persons as spouses, to the
exclusion of all others.” This is almost verbatim the holding of the
Ontario Court of Appeals decision. Then, in the final paragraph, the
“In their complaint the plaintiffs request only a declaration that
their exclusion and the exclusion of other qualified same-sex couples
from access to civil marriage violates Massachusetts law. We declare
that barring an individual from the protections, benefits, and
obligations of civil marriage solely because that person would marry a
person of the same sex violates the Massachusetts Constitution. We
vacate the summary judgment for the department. We remand this case to
the Superior Court for entry of judgment consistent with this opinion.
Entry of judgment shall be stayed for 180 days to permit the Legislature
to take such action as it may deem appropriate in light of this
There are four major elements here. First, from sentences one and two,
the court rules that the current marriage law is unconstitutional.
Second, the lower court opinion which had upheld the law is vacated.
Third, the trial court is ordered to issue a new decision consistent
with the SJC’s opinion (that the marriage law is unconstitutional).
Finally, the court says the decision will not take effect for 6 months.
This is to “permit” (I’m sure they believe this is very generous) the
legislature to act any way it wants “in light of this opinion.” The one
thing that is off the table is a legislative decision to reject the
court’s opinion. Earlier in the decision, the court specifically
rejected the argument that the definition of marriage is a legislative
function. It seems to me that the court may (1) ignore the opinion and
let it go into effect in six months, (2) change the definition of
marriage to “the voluntary union of two persons” or (3) begin the
process of a state constitutional amendment. That will take approval by
two successive legislatures then a popular vote in a general election.
Which is to say, it is not a short term solution.