The Corner

Shedding Some Light

Both Kurtz and Derb seem to misunderstand what the Massachusetts Supreme Court did with its cryptic reference to the legislature. The Court neither remanded the case, nor “ordered” the legislature to do anything. Rather, the SCOMA stayed the entry of judgment for 180 days “to permit the legislature to take such action as it may deem appropriate in light of this opinion.” By granting the stay, the Court essentially recognized that it had created a substantial rupture with current law by redefining the term civil marriage, and therefore prevented the decision from taking effect instantaneously so that the legislature may seek to formally modify the law or implementing legislation to correspond with the legislation. However, the court did not remand or order the legislature to do anything. Indeed, based on the plain language of the court’s opinion, the legislature could use the time to enact legislation that reaffirms that marriage is between one man and one woman, or could seek to modify the Constitution to prevent the outcome dictated by the SCOMA.

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