Gays Have Full Marriage Rights, Massachusetts Court Says

New York Times

My problem with this advisory opinion is basically the same as my problem with the real opinion:

If the Supreme Court of Massachusetts wants to be activist in the name of rights, at least do it with your jurisprudential standards first. Declare that laws discriminating on the basis of sexual orientation are now subject to strict scrutiny. But don't say that's there's no rational basis for a law protecting the sanctity of marriage between a man and a woman. That's just dishonest.

I think the opinion would be much more effective if it read something like "there are rational arguments on both sides of this issue. Homosexuals are fighting for their rights. They feel they are treated as second-class citizens who are denied benefits because of their private sexual behavior. On the other side, our society has a long tradition of promoting marriage between a man and a woman for social and religious purposes. Moreover, the Massachusetts legislature believes that traditional marriage 'support[s] a family setting' that is 'optimal for child rearing.' Unfortunately, the state's arguments do not rise to the level of a compelling interest such that homosexuals' desire for equal legal status can be subordinated. In other words, tie goes to the bi."

Ok, so that last part wasn't very judicial. And I'm sure many of the interested parties aren't bi. But it's still better than this fluff from the original opinion:

"The Massachusetts Constitution requires that legislation meet certain criteria and not extend beyond certain limits. It is the function of courts to determine whether these criteria are met and whether these limits are exceeded. In most instances, these limits are defined by whether a rational basis exists to conclude that legislation will bring about a rational result. The Legislature in the first instance, and the courts in the last instance, must ascertain whether such a rational basis exists. To label the court's role as usurping that of the Legislature, see, e.g., post at (Cordy, J., dissenting), is to misunderstand the nature and purpose of judicial review. We owe great deference to the Legislature to decide social and policy issues, but it is the traditional and settled role of courts to decide constitutional issues."

Wow, good thing you guys have the right to decide constitutional issues! That was a real life saver for your argument! Sure, the rational basis test involves the court examining whether "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class" and a bunch of lawmakers think it does, and you think it doesn't, so you say they lose. But that's not usurping the legislature's role because you have the power to "settle constitutional issues." I guess the phrase speaks for itself. Unfortunately, it doesn't say anything.

Two other small things: It's very weird to read a self-proclaimed "advisory opinion." I've randomly come across other Massachusetts advisory opinions, but I've never see this from any other state supreme court. I'm sure it's out there, but perhaps Massachusetts does this more than other states.

Also, I think it's interesting no federal constitutional issues were brought up. But you can see why: now the decision is unreviewable, because the court didn't decide the case on federal constitutional grounds. I can see why the plaintiffs wanted it this way: the Supreme Court hadn't decided Lawrence when the lawsuit was brought, and even if it had, the court's composition could change by the time it heard the case. This is the essence of the well-pleaded complaint rule (check out a recent Supreme Court case on the rule here). Well pled.