Boston Marriages Now Legal Marriages in Boston
Goodridge v. Dept. of Public Health, Supreme Judicial Court of Massachusetts, SJC 08860, Majority opinion (4-3) by Chief Justice Marshall joined by Justices Greaney, Ireland, and Cowin; Justice Greaney wrote a concurrence (it is a little unclear whether Greaney joined the majority opinion or just the decision); dissents by Spina, Sosman, and Cordy, each of whom joins the other two dissents.

Goodridge is a decision by the Supreme Judicial Court of Massachusetts, which is Massachusetts's court of last resort. I'm blogging about it because it's an important case on a topic that interests me, even though it's not within the main topic of this blog.

Goodridge was a challenge by seven same-sex couples of the refusal of Massachusetts city and town clerks to issue them marriage licenses. The plaintiffs range widely in age and include both men and women. Each couple has been together for years, in some cases decades, and four of the couples have children. The plaintiffs sued in state court, claiming that the marriage license statute did not prohibit same-sex marriages and that, even if it did, that would violate the state constitution. The trial court rejected both claims. The plaintiffs appealed, and the Supreme Judicial Court accepted a direct appeal on the request of both the plaintiffs and the defendants.

The Opinions

The majority opinion begins its substantive analysis by analyzing the statutory background. While Massachusetts statutes do not expressly forbid same-sex marriages, the court concluded, largely on the basis of the common law and historical practice, that as a matter of statutory interpretation marriage refers to a marriage between a man and a woman. The court bolstered this conclusion by pointing to the gender-specific rules about consanguinity, restricting the relationship between a man and the women he may marry and between a woman and the men she may marry. Having dispensed with the sideshow, the court then moved on to consider the real issue: does Massachusetts's prohibition on same-sex civil marriages violate the state constitution?

The majority starts the constitutional analysis by noting that this can be considered either as an equal protection claim or as a claim that the state is restricting a fundamental right. The court noted that those claims are frequently related. The court also noted that under Massachusetts law, civil marriage is a purely secular matter: no religious ceremony has ever been required, and civil marriage is a matter of the relationship of the two parties to the marriage and the state. Although the court does not mention this, that differs from the English tradition, where marriage law was historically a species of religious law, governed by the ecclesiastical courts. The court noted the substantial public benefits created by the institution of civil marriage, as well as the very substantial benefits that the parties derive from marriage, both tangible and emotional. In addition to the benefits that a married couple receives, the court discussed the benefits that children receive from having married parents, despite Massachusetts's abolition of legal benefits for legitimacy.

The court then briefly mentioned some precedent discussing marriage as a civil right, including Loving v. Virginia and other cases striking down miscegenation statutes and decisions in other states about same-sex marriage such as Baker v. Vermont. The court discussed at length the ignominious history of laws prohibiting interracial marriage, and the court decisions striking those laws down. The court also noted the authority of state constitutions to set higher levels of protections of liberty than the federal constitution. After all that build up, the court proceeded to analyze the law under rational basis scrutiny. The court reasoned that because the law failed rational basis review, it did not need to determine whether a higher level of scrutiny ought to be applied.

Levels of scrutiny are a standard legal analytic tool. Innocuous classifications that are not based on any suspect criteria are reviewed for a rational basis: if the legislature acted rationally, its actions will be upheld. In practice, rational basis review almost always results in the policy being upheld. Suspect classifications, such as race based distinctions, are subjected to strict scrutiny, which has famously been described as "strict in name and fatal in fact." Strict scrutiny requires that the policy be "narrowly tailored" to serve a "compelling state interest." There is also intermediate scrutiny, which is used under the federal constitution to test sex-based classifications, but none of the justices argued that intermediate scrutiny was appropriate in this case.

The majority opinion considered three rationales that the government had advanced to defend the policy: (1) the policy provided a "favorable setting for procreation;" (2) the policy encouraged the optimal setting for child-rearing; and (3) the policy effectively allocated scarce public and private resources. The court rejected each rationale in turn.

The majority noted that fertility is neither a requirement for marriage, nor grounds for divorce. Massachusetts does not require consummation for a marriage to be valid; indeed, a marriage where the couple states that they do not intend to ever have sex would still be legal. The court noted that impotency is a reason for divorce, but does not render the marriage void, and that where a wife knew that her husband was impotent prior to the marriage, divorce had been denied.

Furthermore, the court observed that Massachusetts law facillitates procreation and adoption regardless of marital status. The majority then likened this distinction to Colorado's Amendment 2, which was a constitutional amendment overturning local anti-discrimination laws and was invalidated by the Supreme Court under rational basis review, essentially on the ground that animus was not a rational basis. See Romer v. Evans.

The court then moved on to the related second justification, providing the optimal child-rearing environment. While promoting the welfare of children is clearly an important state interest, the majority concluded that banning same-sex marriages was not rationally related to that goal, because the state has recognized and afforded protection to families of many different structures. The court concluded that, with no evidence that banning same-sex marriages will increase the number of opposite-sex families, depriving children of the benefits of married parents because their parents' are the same sex is irrational.

The court then rejected the resource allocation argument. While the state argued that same-sex couples were less likely to need the financial benefits of marriage, the court rejected that rationale because some same-sex couples have dependants and the state does not condition receipt of marriage benefits on financial state in general.

Having rejected the three arguments that it viewed as most significant, the court then cursorily rejected arguments based on such notions as undermining the institution of marriage and the state's purported interest in making a value judgment about relationships. In doing so, the court again cited such precedents as the miscegenation cases to argue for an evolving, improving conception of marriage that is reaching out to include groups that were once excluded and discriminated against. The court also cursorily rejected any argument that permitting same-sex marriages will engender interstate conflict.

Turning to the question of remedy, the majority ruled that the marriage license rule as written was invalid, but that striking the marriage laws altogether would not satisfy anyone or effectuate the will of the people through the legislature. Thus, it ordered that henceforth marriage meant "the voluntary union of two persons as spouses, to the exclusion of others." It remanded to the trial court for entry of judgment, but ordered its decision stayed for 180 days to allow the legislature to react in whatever ways it viewed as appropriate.

Justice Greaney's concurrence relied on an analysis of equal protection doctrine. Massachusetts adopted a state Equal Rights Amendment as part of the nation-wide ERA movement. Even prior to the ERA, the Massachusetts Declaration of Rights included sweeping language requiring equal treatment. While the concurrence implies that the law might be invalid as an infringement of a fundamental right even without the ERA, it states that under the ERA, the law discriminates on the basis of sex: "Hillary Goodridge cannot marry Julie Goodridge because she (Hillary) is a woman." The disability is thus the same as the race based marriage disability struck down in Loving v. Virginia, where white and black people alike were prohibited from entering into interracial marriages. Under Massachusetts law, sex based classifications receive strict scrutiny. Justice Greaney concludes that, for the reasons stated by the majority, the asserted state interests are not "compelling" and the state did not demonstrate that those interests could not be satisfied by any other reasonable approach. The concurrence also rejected any reliance on the definition of marriage as tautological and circular: because marriage is defined as between a man and a woman, the state can define marriage to only apply to the relationship between a man and a woman.

Justice Spina wrote the first dissent. Justice Spina argued that restricting marriage to opposite sex couples does not constitute gender discrimination because a woman and a man are treated equally: neither is allowed to marry someone of the same sex. The justice then distinguished Loving by arguing that miscegenation laws were intended to maintain white supremacy and were part of a pattern of discrimination against African-Americans, even though they applied to both white and black Americans. Justice Spina went on to argue that no-one is deprived of a right to marry by the current law, and that unlimited choice in marital partners is not part of the right to marry. Furthermore, the justice concluded, same-sex marriage is simply beyond the scope of the right of marriage because of the essential nature of marriage. Justice Spina also criticized the remedy crafted by the court, arguing that the court lacks the authority to rewrite the statute by making it gender-neutral; it is unclear from the justice's opinion what remedy would have been appropriate, assuming the correctness of the court's substantive analysis. Justice Spina concluded by arguing that the due process clause has generally protected people from state intrusion, but that by allowing same-sex marriage, the court injected the state into the plaintiffs' lives.

Justice Sosman wrote the second dissent. Justice Sosman focused on the deference inherent in the rational basis test and whether the state could rationally choose to support opposite-sex marriages as the preferred family structure. The justice acknowledged that many other family structures are common, but questioned the court's conclusion that it would be irrational to provide special encouragement for one structure while tolerating and removing the disabilities of other structures. Justice Sosman emphasized that the majority built up a lot of momentum by discussing cases like Loving where higher standards were applied than rational basis review, but then purported to conclude that the legislature was irrational in choosing to credit some of the conflicting evidence on whether same-sex couples are as good parents as opposite-sex couples. The Justice also stressed the role of marriage as the cornerstone of our society, arguing that the legislature could rationally resist making changes to marriage until it was positive those changes would be for the better, even if it would be preferable, as a matter of policy, to permit same-sex marriages. In doing so, the justice noted "there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated; the inability to marry has a profound impact on the personal lives of committed gay and lesbian couples (and their children) to whom we are personally close (our friends, neighbors, family members, classmates, and co-workers); and our resolution of this issue takes place under the intense glare of national and international publicity." As a result of this "perfect storm" of factors, the justice concluded, the court distorted the meaning of rational basis review.

The final dissent was written by Justice Cordy; like each of the other two dissents, all three dissenters joined this opinion. Justice Cordy also focused on rational basis review; unlike Justice Sosman, the third dissent spent substantial energy on arguing why a higher standard of review is inappropriate. Justice Cordy first argued that there is no fundamental right to same-sex marriages. Justice Cordy reasoned that the majority's conclusion was conclusory, relying on the assumption that same-sex marriage is within the meaning of marriage in order to conclude that denying same-sex marriage limits the right of marriage. Justice Cordy argued that the court should instead have looked at the reasoning underlying prior cases about the right to marry, suggesting that those cases were outgrowths of courts' recognition of rights to procreate. Justice Cordy proceeded to analyze all of the intimate association cases as focused on sexual intercourse, going so far as to say that when Justice Goldberg discussed the intimacy of the marital relationship, he "was obviously referring to sexual relations." Justice Cordy went on to say that the plaintiffs' claims do not implicate privacy rights, because they ask for the involvement of the state in their relationship, not for the right to prevent the state's intrusion. Justice Cordy then made a more general argument for defining fundamental rights narrowly and cautiously, essentially to preserve as many areas as possible for political resolution rather than legal resolution.

Justice Cordy then proceeded to analyze the sex-discrimination claim. The justice argued that the point of the ERA is to prevent laws that favor men over women, or vice versa, and does not reach "separate but equal" treatment. Justice Cordy distinguished Loving by noting that the miscegenation laws were designed to stigmatize one race and that laws which support white supremacy are inherently different from this law, which the justice argued was not motivated by sexism. Justice Cordy also discussed the legislative history of the ERA, arguing that statements in legislative commissions and the popular press denying allegations that the ERA would lead to same-sex marriage show that the people of Massachusetts did not intend the ERA to reach that far. Justice Greaney responded to this argument in a footnote, noting a lack of support for originalist interpretations as a general philosophy and the pre-existing requirements of equal protection that existed before the ERA was enacted. Justice Cordy then articulated an extended argument for how a marriage law excluding same sex marriages could serve a rational interest, focusing on promoting a preferred family structure.

Analysis

While the Massachusetts's court's decision is an important step forward for equality, the majority opinion is not very convincing. Rational basis review is traditionally an extremely deferential standard. In fact, the major cases where the Supreme Court has struck down laws under rational basis review are cases where the Court has concluded that the legislature could only be motivated by animus against a group. While rational basis review is sometimes interpreted as essentially meaningless and I support rational basis review with teeth, even rational basis review with teeth is highly deferential to the legislature. If we take rational basis review seriously, we need to credit decisions by the legislature resolving ambiguous factual questions, such whether same-sex couples are as fit parents as married heterosexual couples. Contrary to Chief Justice Marshall's opinion, the state could reasonably decide that permitting same-sex couples to adopt is in childrens' best interest, while still concluding that encouraging traditional families is superior policy. I certainly agree that permitting same-sex marriages is a superior decision, but if the question is whether a different conclusion is irrational, I think that Justice Sosman would be correct.

Fortunately for people who sympathize with the conclusion the court reached, rational basis isn't the correct standard. Justice Greaney's analysis handles the case much more accurately. Contrary to the arguments that the dissents made, this case is precisely analogous to Loving. To be fair, the purpose of miscegenation laws was maintaining a racist structure, whereas the limitation of civil marriage to opposite-sex couples is only highly heteronormative. If classifications based on sexual orientation are only subjected to rational basis review, heteronormativity may not be forbidden. But nonetheless, treating a woman as having different rights than a man would in the same circumstances is, indeed, discrimination on the basis of sex. And applying strict scrutiny, forbidding same-sex marriages fails, as Justice Greaney concluded. There may be a better analysis, based on fundamental rights of intimate association, but Justice Greaney's analysis is correct, and I'm not going to quibble too much about which correct analysis is applied. (That's doubly true because the circularity problems of the scope of a right of intimate association are real, even though Justice Cordy seriously underestimates the meaning of "intimacy" by interpreting it as only referring to sex.)

Separate but equal is still sex discrimination. There may be times when it passes strict scrutiny; there may be room for a state-run women's college, for example. But treating individuals differently based on their gender is sex discrimination, and unsurprisingly often is associated with invidious discrimination.

Justice Cordy's point about the legislative history is interesting, but I think that Justice Greaney still gets it right. When the people make a decision to prohibit the government from discriminating on the basis of sex, they intend to bind themselves to that principle, even if in some specific cases they would blink at the principle that they have embraced. The point is to place that principle above their ordinary preferences. It's true, as Eugene Volokh points out on volokh.com, that validates the slippery slope arguments that conservatives made in opposing the ERA, but that's okay. People took those arguments into account when they decided to enact the ERA. Whether the state would proceed further down that slope depends partially on public opinion, partially on the reasoned development of law, and partially on the deliberately political process by which judges and justices are appointed. (For what it's worth, three out of the four justices in the majority were appointed by Republicans- Massachusetts Republicans, but Republicans nonetheless.) Slippery slope is just a perjorative term for the process of analogic reasoning. There are analogies that shouldn't be drawn- slopes that shouldn't be gone down- but slippery slope arguments are legitimate. That doesn't mean they're always correct, but they are valid. That's why people make the same sorts of slippery slope arguments about things like the Supreme Court's federalism jurisprudence.

What's Next

So, the first big question is whether the Massachusetts legislature could adopt a civil union statute, similar to the response of the Vermont legislature to Baker. It's not clear that it could; Baker was a much less sweeping decision that clearly left that door open. Here, the Supreme Judicial Court expressly stated that civil marriage applies to same-sex couples, while still staying its decision.

The legislature could almost surely pass a law eliminating all marriages in Massachusetts, while presumably adopting a civil union law for all couples. But I don't think that the legislature is likely to do that. So the interesting question is whether the legislature could pass a civil union law that only applies to same-sex couples, with civil marriage still reserved for opposite-sex couples.

One of the concerns the court discussed is discrimination against non-marital children, even by actors besides the state. How would civil unions resolve that concern? Surely, there would still be people who considered "civil unions" to be second-class marriages- which is reminiscent of the court's language denouncing regimes that create second class citizens. Furthermore, if the plaintiffs have a right to avoid that discrimination, can the state close the door to their efforts to obtain the federal benefits of marriage? In its discussion of the benefits children derive from their parents' marriage, the court noted that marriage can facillitate "access to family-based State and Federal benefits." But that then raises the question of whether the Defense of Marriage Act changes the law.

So while there's some possible wiggle room, it looks very likely that the courts would invalidate a civil union, "separate but equal" regime. I think that analysis would be correct.

The other question is whether Massachusetts same-sex marriages would be recognized by other states or by the federal government. The first thing to note is that same-sex couples will not be able to come to Massachusetts just for a marriage. As Justice Greaney noted, Massachusetts law specifies that marriages contracted between residents of other jurisdictions who intend to continue living in that jurisdiction are invalid if the marriage would be illegal in the home jurisdiction. See A.M.L. G.L. 207, Section 11. But that only postpones the issue. Given the mobility of modern Americans, it won't be long before a same-sex married couple moves out of Massachusetts. That will present the issue of whether their marriage is entitled to recognition.

There's a big question there about whether the Defense of Marriage Act, or state versions, are valid. Those questions have to do with important issues of federalism, the Full Faith and Credit Clause of the Constitution, which requires states to recognize other state's judicial decisions, and whether DOMA is the sort of animus based law that is unconstitutional under decisions such as Romer v. Evans. I'm not sure yet on what conclusion I think is correct, because I haven't looked at the Full Faith and Credit Clause jurisprudence. I suspect that the Romer argument would hold together, at least as to the federal benefits, but assuming, for the sake of argument, that bans on same-sex marriage are constitutional in other states with less protective constitution, I don't think the Romer argument would go that far. That would make the portability question really come down to the Full Faith and Credit Clause.

There is a serious danger that this will trigger constitutional amendments. The political situation isn't as clear as the law, which is plenty murky. I don't think a constitutional amendment is likely in Massachusetts. The most recent polls indicate that a majority of Massachusetts voters support same-sex marriages (50 % to 44 % according to a Boston Globe poll in April). It could still go either way, but a Massachusetts constitutional amendment requires a majority vote of the state legislators in two consecutive terms, followed by a majority vote of the electorate. That means that the popular vote could take place no earlier than November 2006. Because the opponents of same-sex marriage skew old, and the supporters skew young, those three years are likely to move popular opinion further in support of same-sex marriages.

The Federal Marriage Amendment is a bigger worry. If DOMA is struck down, there will be a big fight over the Federal Marriage Amendment. It would be close and could be very ugly. When that fight takes place matters a huge amount. In ten or twenty years, it wouldn't be close. There's thus a real danger of this leading to a backlash that does more harm than good. (Eugene Volokh has a good discussion of this. This is also part of the arguments used by people like Nathan Newman (www.nathannewman.com), who is a liberal (and a co-worker of mine) who argues that judicial review as a whole is bad for the left, because of backlash when we win cases and conservative decisions when we lose). But at the same time, as a progressive who believes in my legal analysis, I'm not sure there's room to distort constitutional analysis for strategic purposes. If DOMA is unconstitutional, as it well may be, courts should strike it down when the cases come. And then we should fight like hell to stop an amendment.

Oh, about the title: in the 1800s, people referred to pairs of women who lived together in long-term, committed relationships as being in "Boston marriages." There's no good way of knowing how many Boston marriages were lesbian relationships, but some of them surely were. In any event, even Boston marriages that are not sexual relationships could receive legal recognition as civil marriages in Massachusetts once the stay expires.