JB

The Massachusetts Supreme Judicial Court today stated in an advisory opinion that a civil unions bill that gave same sex couples substantially all of the same rights as opposite sex couples did not comply with its previous ruling in Goodridge v. Department of Public Health.

I support the idea of same sex marriage as a matter of legislative policy, but I have a bone to pick with what the SJC did here. Through its two opinions it has sent conflicting signals that may have ultimately damaged the cause of gay rights. Here's why.

After holding that Masschusetts' existing law was unconstitutional for excluding same sex couples, the SJC could simply have awarded marriage licenses to the plaintiffs. Instead it refused to do so, staying its mandate until the middle of May (May 17th, the 50th anniversary of Brown v. Board of Education, by the way) for the Massachusetts Legislature to respond.

This feature of the opinion confused many people. It seemed to signal that the legislature would be free to experiment with different solutions, including possibly a civil unions law like the one passed in neighboring Vermont. The purpose of giving the issue back to the legislature, many people assumed, was to allow the legislature to debate the issue, and reach a political compromise instead of the SJC forcing the issue. The idea would be to make the same-sex marriage bill a product of a democratic process rather than a court mandate. When courts make important and controversial decisions, they are on firmest ground when they act with the blessing of the legislature. What legislatures do often ratifies what courts have done before. For example, the Civil Rights Act of 1964 effectively ratified the Court's 1954 decision in Brown v. Board of Education, making opposition to segregation not only the demand of the Supreme Court but also official U.S. legislative policy. It was the Civil Rights Act of 1964, and not Brown, that did the most to desegregate the South.

The Supreme Judicial Court of Massachusetts might have tried, as the Vermont Court did, to coax the state legislature into ratifying its decision by passing a bill based on the Legislature's own judgment about the best way to enforce the Court's order. But in its latest opinion, the SJC has essentially said that there is only one way to enforce its order. It has given the legislature no discretion at all. It has insisted on what is effectively a rubber stamp, which will achieve no additional democratic legitimacy.

Indeed, having issued its advisory opinion today, it is now clear that there was no particularly good reason for delaying its mandate in the original Goodridge opinion. It might as well have just issued marriage licenses to the plaintiffs in the first place. (To be sure, the Court might have feared that issuing the mandate immediately would be interpreted as striking down the marriage laws in Massachusetts, but that is not the only possible remedy and the Court could have dispelled any confusion on that score). In effect, the SJC has made any attempt at dialogue with the Massachusetts legislature into a sham.

Not surprisingly, many Massachusetts legislators who would have supported a civil unions bill now will vote for a amendment to the Massachsetts state constitution defining marriage as the union of one man and one woman. Such an amendment could not take effect until at least 2006. Nevertheless, the Court has wasted an opportunity to get half a loaf (and possibly a full one) when it may well end up with none in the long run.

The SJC may have been gambling that by forcing the issue, tempers will eventually cool and the residents of Massachusetts will come to accept same sex-marriage. That may turn out to be the case. Or it may not. But the Court shouldn't send out confusing signals in the way it has done. It either should have issued marriage licenses last fall or it should have allowed the Massachusetts legislature to come up with a solution with some democratic legitimacy. It has done neither, and in this respect it has made a grievous political error that may ultimately undermine its authority and lead to the overturning of its Goodridge decision.

It is possible that the Court will not have to pay for its political mistake. The Massachusetts Legislature may pass a same sex marriage act and the proposed amendment may fail. But if the amendment passes, it will be the Supreme Judicial Court's fault for bungling the situation.

A final word about the national implications of this decision. It may look at first as if this decision harms the Democrats, as President Bush will be able to run against what the SJC has done. But in fact it may have the opposite effect. Bush has tried to avoid directly stating that he supports the Federal Marriage Amendment (which I have analyzed in previous posts, here and here). He has inched toward endorsing it without doing so directly because he fears that endorsing it will make him look intolerant to swing voters. But the SJC's decision will result in increased pressure from social conservatives in the party to come out firmly in favor of the FMA. Thus, the SJC may have simultaneously made things difficult for both the Democrat nominee and for President Bush.