The Corner

Reading Goodridge

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

court says:

“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.


The Latest