MASSACHUSETTS GETS IT WRONG ON GAY MARRIAGE: Jeffrey Rosen in The New Republic

[I don't think this piece is online, so I'm snipping a few chunks from Nexis, and you should get the Dead Tree version and read the whole thing.]

...Although the Alaska and Hawaii courts both declared a right to gay marriage, they offered different reasons for their conclusions. The Alaska court said that the right to marry was fundamental and concluded that, if a right is fundamental, it must be extended to everyone on equal terms. This conclusion is less obvious than it appears: The U.S. Supreme Court opinions in the 1920s that called marriage a fundamental right referred to the fact that the right of men and women to marry was recognized by state common law. But state common law also imposed (and continues to impose) all sorts of restrictions on the right, prohibiting not only same-sex unions but also polygamous and incestuous ones. These restrictions suggest that, even if marriage is a fundamental right, the state can refuse to extend it to unions of which it disapproves. ...

The Hawaii Supreme Court took a different tack, arguing that the ban on gay marriage amounts to sex discrimination, because it declares that Ms. X is allowed to marry Mr. Y but is prohibited from marrying Ms. Z. In fact, both genders are being treated alike--men and women are both forbidden from marrying members of the same sex. And, unlike laws that prohibited blacks and whites from marrying each other, the laws banning same-sex marriage aren't designed to stigmatize or subordinate one gender or the other.

While the Goodridge ruling cites the fundamental rights and sex-discrimination arguments offered by Alaska and Hawaii, it endorses neither. ...Instead, the majority says that it doesn't have to decide whether the state has compelling reasons for restricting marriage, because none of the reasons the state offers are rational. ...

As a constitutional matter, this is a bold and unprecedented conclusion. Ordinarily, rational basis review is a very relaxed standard of scrutiny: If any reasonable legislator could believe that there are plausible and legitimate reasons for the law, judges will uphold it.

...Armed with this more modest reading of Lawrence, the Massachusetts Supreme Judicial Court might have produced an opinion that followed the Vermont Supreme Court's reasoning along the following lines: Massachusetts is free to reserve the label "marriage" for heterosexuals simply because it thinks that maintaining the traditional definition will preserve its social prestige at a time when heterosexual marriage needs all the help it can get. But it can't do so in a way that is designed to degrade or stigmatize gay and lesbian unions or to grant them unequal benefits under law. Therefore, the restriction of marriage to heterosexual couples can't be justified unless the Massachusetts legislature immediately creates civil unions or its equivalent for gays and lesbians. ...
posted by Eve at 3:47 AM VOTE

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