SJC: Only MA Same Sex Couples May Marry

(Bad news for Galluccio. Once the EMTs are in the case, I don't see any way around Galluccio having to cut a deal, if they'll let him. - promoted by David)

Thank you Tom Reilly!

Link here

UPDATE (by David): You can read the entire decision at this link.

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29 Comments . Leave a comment below.
  1. What as it Unanimous Decsion?

    The SJC is full of homophobes.

    There is no other reason for that ruling.

    eb3-fka-ernie-boch-iii   @   Tue 4 Dec 7:00 PM
    • Not unanimous -

      Justice Ireland dissented.

      • two things:

        1. I just read the opinion...interesting how the SJC states that marriage is NOT a fundmental right guaranteed by constitutional law.  It went on an on about how marriage is not "essential" to the development and proper functioning of our nation...the only way it could be protected under the privileges and immunities clause. 

        That's an interesting take since scores of high court cases have clearly established marriage as a fundmantal protected right. 

        I agree with most of you all,'s time for the legislature to step up and get rid of this antiquated law.

        2. What political clout this could have for BOTH Romney and Reilly!  As Governor, Romney lauds this and uses it to garner more support from right wing social conservatives.  If the legislature tries to repeal it, he can veto, thus showing people how morally opposed he is to gay marriage (vomit).

        Reilly, on the other hand, could appease the GLBT community  by pledging that if he is elected governor he would ensure that this statute is repealed, and the FUNDAMENTAL right to marry is fully protected in Massachusetts.  He'd probably get some good national press too (since this decision has made it all over the national news already).  If he's politically smart (which is suspect, at best) he will absolutely use this to his advantage, something Romney already has begun doing. 

    • Not terribly surprising

      I'm none too pleased by this ruling, but I have to admit that it does make a certain amount of sense. The original ruling (November '03) was based on the MA constitution barring the creation of second-class citizens, and that disallowing gay marriage did just that.

      Other states, and the federal Constitution, though, do not bar this. The closest the federal Constitution comes is guaranteeing due process for all.

      So it makes a certain amount of sense to make the decision the way they did. Personally, I disagree -- I think we should be guaranteeing the rights of all as long as they are on MA soil -- but there it is.

    • Maybe now they'll get their pay raise

    • Not exactly

      You can't say they are full of homophobes, after all they gave us the Goodrich decision.  I don't like the decision they came up with in this case either but I don't really think it is fair to generalize them all as homophobes.

  2. What about the legislature?

    Why don't they just repeal the law?  Let Romney veto it, and then try to exceed the veto.

    Every part of government has had a role -- the SJC, Romney, Reilly, and the legislature.

    • Right.

      As I've been saying for some time, the first line of attack in these matters should usually be legislative, especially where (as here, I'd think) there's a reasonable chance of success in going that route.  We need to get out of the habit of thinking that the courts will solve our problems for us.

      • Agreed.

        eb3-fka-ernie-boch-iii   @   Tue 4 Dec 7:00 PM
      • Not a habit

        The inevitable result of a system where the Courts trump the legislative branch.

        • The problem is . . .

          in some cases the courts are the only option. Thankfully MA has a fairly progressive legislative body. Even states like NY would have trouble passing a law legalizing gay marriage, because it has a Republican controlled Senate.

          • Perhaps the SJC is Right?

            The analysis makes sense. The SJC did its job and showed us the proper remedy. Change the law.

            eb3-fka-ernie-boch-iii   @   Tue 4 Dec 7:00 PM
            • But...

              It really isn't the proper remedy.  The opinion says marriage is not a fundamental right (which the US Supreme Court has repeatedly ruled IS a fundamental a matter of fact, one of the oldest and most valued fundamental rights).  The SJC bases a good deal of its analysis off of that assertion, and justifies its decision saying marriage laws don't fall under the P&I clause. 

              Nothing we can do about it.  The best remedy is definitley legislative intervention.  I really wouldn't like to see this go up to the SCOTUS. 

        • What, then, instead of courts?

          I'm always a little perplexed when people argue that there's something wrong with the courts overturning laws, or (as I've seen on occasion) that judicial review is inherently unconstitutional.  Since long experience shows that it is clearly quite possible for the legislature to pass laws which do not accord with the Constitution, what other remedy should there be?  If nothing trumps the legislature, then the Constitution has no real weight.

          Or put another way, the role of the courts is as interpreters of the law, and the role of the Supreme Court is as the highest and final interpreter of the law.  But "the law" does not consist only of bills passed by the legislature; the Constitution is law also, and is in fact a higher law, by design setting out general principles rather than specific details, and though not immutable still very difficult to change.  So how is it not proper to the courts' role as interpreters of law, to rule on when and whether the everyday law of the legislature conflicts with the higher law of the Constitution?

          • The Department Theory

            i.e. checks and balances. Giving the Court an absolute final say on the meaning of the Constitution allows one branch to tell the others what to do. It is not written in the Constitution, was not approved by the state ratifying conventions in 1787-9, was implemented only in the late 19th century, and is as constitutionally perverse, in MHO, as allowing the President or Congress to order the Court to rule a specific way in a particular case. An alternative is for each of the three branches to interpret the Constitution and act accordingly within their proper Department: each checks and balances the other. The Constitution, in MHO, would actually have more weight under such a system than under the present one -- where what it "says" changes at the whim of one or two Justices. You write: "Since long experience shows that it is clearly quite possible for the legislature to pass laws which do not accord with the Constitution." I say: first, that's your opinion -- the representatives who passed those laws, whatever they were, disagreed; second, the Court is guilty of at least as much egregious behavior as the legislature; third, which system has a better historical record -- elected democracy (i.e. Congress and the President) or unelected oligarchy (the Court). The Courts should rule on the cases that come before them, but they should not be permitted to assert a monopoly on Constitutional interpretation -- that way, as Justice O'Conner said in a slightly different context -- dictatorship lies. (David, I think, has a different view ;-)

            • Who, me? :)

            • Unelected Oligarchy...

              It's a straw man argument to conflate the Court with "unelected oligarchy". Justices are appointed by the President, confirmed by the Senate, and are influenced (even if they say they're not) by the general legal and political trends of the day. Courts, including the SJC and the Supreme Court, are powerful political actors but they are not floating above the political world wielding absolute power.; the

              As for the history, many of the framers of the Constitution (Hamilton, for one) accepted the idea of judicial review and it was in 1803, not in "the late 19th century", that the Court first voided a federal law in Marbury v. Madison. There have really been two classes of opponents of judicial review in American history: people who philosophically oppose it, and people who dislike the particular direction that courts are taking (some liberals may feel this way today).

              You ask for a system in which all the branches "interpret the Constitution and act accordingly within their proper Department." Such a system, in your view, would help each branch "check and balance the other". But how, if the Court couldn't declare laws unconstitutional, would such checks and balances work? As Hamilton pointed out, the Court has neither the power of "the sword or the purse". It can't cut the budget of Congress or the President or order high-ranking officials arrested; the power that the Court has lies in its accepted authority to interpret the Constitution. Such a power helped desegregate schools, change redistricting, and resolve the Watergate crisis.

              You ask which system has a better historical record, but the choice (as I mentioned earlier) is not between "elected democracy" and "unelected oligarchy". I actually prefer neither; I prefer what we have right now: a democratic Republic with a body at least somewhat insulated from popular opinion that can protect the rights of unpopular minorities.

              I know I have strayed from the subject of the post, but I believe very strongly that judicial review is an important force in our society and that the idea that courts are somehow illegitimate is a damaging one.

            • Marbury v. Madison

              Marbury v. Madison was adjudicated in 1803, not "the late 19th century".

              And in all that time, nobody's come up with a Constitutional Amendment that would withdraw the power of judicial review.

              • Marbury

                I know what Bob's going to say, so I'll say it first.  Of course, Marbury was decided in 1803.  But Marbury concerned a law that related specifically to the judicial branch - in particular, to the sorts of cases over which the Supreme Court could constitutionally exercise original jurisdiction.  In concluding that Congress had unconstitutionally declared that the Supreme Court could issue a particular sort of order, the Court decided a case that specifically related to the powers of the judiciary itself.  Thus, Bob will say, the Court did precisely what the Framers intended: it issued an authoritative interpretation of the Constitution as it relates to the judiciary - but it doesn't follow that the Court can do similarly for laws relating to other branches.

                This is a plausible interpretation of Marbury, though my own view is that it is not entirely convincing.  But it's a complicated question - as Marbury itself is a very complicated opinion.

                Bob is quite right, however, that judicial review in its present-day form did not resurface until the mid-19th century.  From Marbury until then, not a single act of Congress was declared unconstitutional.

                • Exactly

                  I'll just make a few final points. I don't think any of the framers, even Hamilton, would approve of the system we now have, where five people can make all the laws for the country. As Hamilton wrote a few sentences later in the Federalist 78 you cite: "I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.'" The specific idea that the Court protects minorities, although arguable, is not, in MHO, well supported by the specific historical record in our country, nor by the general historical performance of small ruling elites. (The most vigorous proponents of this theory, in my observation, are lawyers). How would the system I propose work? As the Constitution says: the Court would decide cases, one at a time. The Executive and Congress should go about their separate jobs. The critical point is that they should not cede interpretation of the Constitution to the Judiciary.

              • Amendment?!

                Judicial review isn't even written into the Constitution, so why should anyone need an amendment to say anything about it. It's a doctrine, practice, philosophy, system ... it's not a Constitutional provision -- although a lot of smart people have tried to read it in between the lines!

                • Well,

                  certainly, constitutional amendments have overruled judicial decisions with which 2/3 of the Congress and 3/4 of the legislatures disagreed.  Amendments 11, 14, and 16 certainly fall into that category, and cases can be made for others.  And, of course, innumerable amendments to overrule judicial decisions have been proposed but failed (flag burning, abortion, you name it).  So just because something isn't "written into the Constitution" doesn't mean you don't need an amendment to change it!

      • So why is it Tom Reilly's fault?

        He didn't legislate the law. Obviously, the court sided with his interpretation. Do we only defend laws that protect the interest of the Gay community. Change the law if you don't like it but don't shoot the messenger!

  3. The decision makes sense to me

    What exactly is the point of allowing a couple to marry in Massachusetts and then go home and live in some, say, here in Florida...where their marriage will most definitely not be recoginized? What exactly have they gained? Besides, there is a fundamental right for people to live wherever they want...why not encourage couples from other states to move to Massachusetts? Maybe if enough same-sex couples moved to Massachusetts you all could get another Congressional seat.

    • Fundamental rights...

      In a legal sense, Alice.  The Supreme Court has recognized certain rights as fundamental, such as marriage, procreation, ability to rear children, etc.  This is based on long legal precedent that stems back to the founding of this country.  We can get into a debate over a fundamental right to live where you want (which hasn't been directly addressed by the Supreme Court, as far as I know), but the Supreme Court has repeatedly asserted that marriage IS a constitutionally fundamental right, which subjects laws related to it to a MUCH more stringent constitutional standard.  The SJC yesterday pretty much ignored that precedent and places marriage as an ordinary right.  That's a scary precedent.  But I just want to make clear that when we talk "fundamental rights", I'm not just throwing the word "fundamental"'s actual constitutional law recognized by the highest Court in the land.

      Also, I was mistaken, Reilly cannot gain from this because he was the one arguing that the law was constitutional (I wasn't fully aware of that, guess I should have read more).  Woops...Gubernatorial candidate Reilly has all but sealed his fate with the GLBT community. 

      • The US Supreme Court

        has recognized the right of heterosexuals to marry and to have children as fundamental rights. However, much as you and I would like for this right to be extended to same-sex couples, I have a really hard time picturing the current Supreme Court agreeing to that--especially with the possibility of Bush getting another appointment (unless he gets impeached or the Dems win a solid majority in the Senate). The only right that they have recognized for homesexuals is the right not to be arrested for having sex in private.

        • Not quite right -

          In Romer v. Evans, the Court struck down a state constitutional provision that essentially barred any government action protecting gay rights.  In fact, since the 1986 case of Bowers v. Hardwick (which was overruled in Lawrence v. Texas), the two major gay rights cases in the Supreme Court (Romer and Lawrence) have come out favoring gay rights.  I'm not saying that it would be such a great strategic move to push gay marriage into the Supreme Court, but it's interesting nonetheless.

  4. Good for our economy

    Maybe this will stop the population loss, as Alice suggests.

  5. The problem is . . .

    in some cases the courts are the only option. Thankfully MA has a fairly progressive legislative body. Even states like NY would have trouble passing a law legalizing gay marriage, because it has a Republican controlled Senate.

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