MASSACHUSETTS GETS IT RIGHT ON GAY MARRIAGE: Cass R. Sunstein in The New Republic

[Also not online; also snipped off Nexis]

...The Massachusetts court's most important conclusion in Goodridge was that the state had failed to produce a "rational basis" for its refusal to allow same-sex couples to marry. The state had defended its prohibition of gay marriage principally by arguing that it sought to maintain a "favorable setting for procreation." But, given Massachusetts law, that is a ludicrous explanation. For well over a century, Massachusetts has held that a marriage need not be consummated to be valid. It even allows same-sex couples to have insurance coverage for assisted reproductive technology. In the court's words, the "Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried ... and whether the parent or her parent is heterosexual, homosexual, or bisexual."

The state also defended its ban by claiming that it sought an "optimal setting for child rearing," which it defined as "a two-parent family with one parent of each sex." But this rationale is equally difficult to square with Massachusetts's laws and precedents, which recognize and attempt to protect many families that do not fit the traditional mold. For example, in 1983 the court ruled that homosexual orientation is not sufficient grounds for denying child custody in a divorce case; a 1999 decision, also involving child custody, emphasized that the child's best interests should take full account of the child's relationship with "de facto same-sex parents." Furthermore, Massachusetts ensures that adoption is available to married couples and same-sex couples alike. ...And, in any case, "the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws," not least because of the significant economic and social benefits of marriage under state law.

...Moreover, should the state wish to reject Goodridge in its entirety, it could amend the Massachusetts constitution fairly easily. The process is time-consuming but less arduous than changing many state constitutions. To get on the ballot, it is enough for an amendment to be approved by merely one-quarter of state legislators in two successive legislative sessions and then to be ratified by a bare majority of Massachusetts voters in a statewide election. Such amendments are not unusual in Massachusetts, where the constitution has been changed 55 times since 1919--sometimes in response to actual or anticipated decisions of the state supreme court. ...

The reasonableness of the Massachusetts court's decision does not, however, mean the U.S. Supreme Court should follow suit now or in the near future. Quite the contrary. At the national level, judges ought to show caution in ruling on gay rights. ...

...Of course, such state-level experimentation will lead to different laws, raising one obvious question: Must other states recognize same-sex marriages conducted in Massachusetts? If so, Massachusetts would be effectively setting marriage policy for the nation. ...In any case, Congress foresaw the ramifications of a Goodridge-like ruling in 1997 when it passed the federal Defense of Marriage Act, which expressly authorizes states to refuse to recognize same-sex marriages even if they are valid in the state where they were performed. ...
posted by Eve at 3:53 AM VOTE

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