Guest Blog

Special thanks to "Tocqueville," TBB friend and constitutionalist, who has been keeping close track of the recent legal developments in the same-sex marriage controversy. Please consider his string of insightful comments and reportage on these events, in chronological order (it is fairly lengthy--but well worth your time):

6 July 2006:


Gay marriage was dealt two defeats today.

By a vote of 4 to 2, the highest court in New York has held that the New York constitution does not "compel" the recognition of same-sex marriages. The matter, said the court, is for the state legislature to decide. Here is an excellent quote from the majority opinion:

"The dissenters assert confidently that "future generations" will agree with their view of this case (dissenting op at 28). We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made."

This marks the first state high court to address the substance of a gay-marriage claim since the outrageous Goodrich decision in Massachusetts in 2003.

The ruling, coming from a fairly progressive court in a deep-blue state, must be considered a significant set-back for gay-marriage litigants and further evidence that (if democracy is allowed to prevail) conservatives are not losing this battle. At the same time, the opinion does not undermine the arguments of those who have claimed that a federal marriage amendment is needed to block an activist Supreme Court from imposing gay marriage on the nation. That argument is largely premised on the demands of the Full Faith and Credit Clause and the questionable constitutional validity of the Federal Defense of Marriage Act.

Gay marriage also lost today in Georgia, but on a slightly more technical and less substantive point. The Georgia Supreme Court unanimously reaffirmed the constitutionality (under the Georgia constitution) of the state amendment banning gay marriage by denying a previously held technical argument on which it was overturned. The Georgia Supreme Court justices ruled that the amendment to the state constitution, approved by 76 percent of voters in November 2004, does not violate the Georgia constitution's single-subject rule by addressing other issues such as civil unions in addition to marriage. Narrowly focused, this opinion does not address the issue of gay marriage per se, only the requirements of the Georgia constitution's single-subject rule.

Neither case interprets the demands and requirements of the U.S. Constitution, and neither holds any precedential authority for that purpose. Now we await decisions from high courts in New Jersey and Washington. I can see no more than four votes on the currently constituted U.S. Supreme Court in favor of upholding the Federal Defense of Marriage Act (if the case is ever heard).

7 July:

The following arguments have been offered by many defenders of Lawrence v. Texas and critics of the FMA: (1) There's no real likelihood that the U.S. Supreme Court would mandate recognition of same-sex marriage any time soon. (2) People who are skeptical about the recognition of same-sex marriage thus need not be worried about the implications of Lawrence or eager to enact the FMA. (3) The same-sex marriage debate ought to just percolate at the state level, with no need for federal intervention through the amendment process and no real risk of federal intervention through a U.S. Supreme Court Goodridge-like decision.

Yet now Democratic National Committee chairman Howard Dean says this:

Statement by Howard Dean on the New York Court of Appeals Ruling on Same-Sex Marriage ...

WASHINGTON, July 6 /U.S. Newswire/ -- Democratic National Committee Chairman Howard Dean today issued the following statement in response to the decision by the New York Court of Appeals that the state constitution does not guarantee the right to marriage for same-sex couples, but that the state legislature could provide this:

"As Democrats, we believe that every American has a right to equal protection under the law and to live in dignity. And we must respect the right of every family to live in dignity with equal rights, responsibilities and protections under the law. Today's decision by the New York Court of Appeals, which relies on outdated and bigoted notions about families, is deeply disappointing, but it does not end the effort to achieve this goal.

"As that essential process moves forward, it is up to the State legislature to act to protect the equal rights of every New Yorker and for the debate on how to ensure those rights to proceed without the rancor and divisiveness that too often surrounds this issue."


Does this mean that a Democratic President is likely to appoint Justices who would reject "outdated and bigoted" decisions such as the New York Court of Appeals', and who would therefore interpret the U.S. Constitution the way Dean thinks the New York Constitution should have been interpreted -- as "guarantee[ing] the right to marriage for same-sex couples"? Does it mean that the sitting Justices would be acting in an "outdated and bigoted" way by not interpreting the U.S. Constitution as mandating the recognition of same-sex marriage? Does Dean merely condemn the particular reasoning of the New York Court of Appeals, but accept the result? Or does Dean believe that the New York court's interpretation of the New York Constitution was wrong, but the U.S. Supreme Court's similar interpretation of the U.S. Constitution would be proper? (Such a theory is certainly possible, but I just wonder whether this is indeed Dean's view.)

I realize that many people might welcome a Supreme Court decision mandating recognition of same-sex marriage. It justs seems to me contrary to the predictions that I'd heard from many sources about the unlikelihood that the U.S. Supreme Court would take such a view. Isn't it a bit odd to condemn (whether or not soundly) the New York Court of Appeals' decision as relying on "outdated and bigoted notions" and then urge that the coming legislative debate "proceed without the rancor and divisiveness that too often surrounds this issue"?

July 10:

Who Is Sovereign in Massachusetts -- the Justices or the People?

In today's Schulman v. Attorney General, the Massachusetts Supreme Judicial Court rejected a pre-election challenge to an initiative constitutional amendment that would overrule the court's same-sex marriage decision. The Massachusetts Constitution bars initiatives from "revers[ing] ... a judicial decision," but the court unanimously (and in my view correctly) held that this applied to attempts to reverse a decision as between the two parties involved it doesn't bar the overruling of a judicial decision that interprets the state constitution.

But Justices Greaney and Ireland wrote a disturbing separate concurrence to address a different matter (emphasis added):

"In Goodridge v. Department of Pub. Health, we held: "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are homosexual. 'The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.' Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984) Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under the law protected by the Massachusetts Constitution."

"There can be no doubt after the Goodridge decision that the Massachusetts Constitution protects the right of a couple who wish to marry, and are otherwise eligible to marry, to obtain a marriage license, regardless of gender. It is equally clear that the proposed initiative is directed toward withdrawing this right from a distinct segment of our community, thereby prohibiting, as matter of constitutional law, same-sex couples from committing to civil marriage and from attaining the multitude of legal rights, and financial and social benefits, that arise therefrom. The proposed initiative cannot be said to further a proper legislative objective (as was categorically decided by the Goodridge court, there is none). The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form. Our citizens would, in the future, be divided into at least three separate and unequal classifications: heterosexual couples who enjoy the right to marry; same-sex couples who were married before the passage of the amendment (but who, if divorced, would not be permitted to remarry someone of the same sex); and same-sex couples who have never married and, barring the passage of another constitutional amendment on the subject, will be forever denied that right.

"There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by art. 1 of the Massachusetts Declaration of Rights.... [T]he Goodridge decision may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution.

"If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable. We may then give careful consideration, in view of what has been said above, to the legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document's elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits."



This strikes me as deeply wrong: The Massachusetts Supreme Judicial Court is saying that its judgments about equality and fairness under the Massachusetts Constitution trump not only the judgment of the legislature, but the judgment of the people amending the constitution itself.

And this, it seems to me, goes to the heart of sovereignty and self-government. Judicial review has pluses and minuses, but its premise (which I believe generally justifies it) is that the people have ordained a Constitution as the supreme law of the land. Judges must therefore enforce this supreme law as against any legislative enactments, or even the enactments of the people voting as ordinary legislators. The judges are thus acting as servants of the sovereign people, carrying out the people's instructions. One problem, of course, is that sometimes the people of today may want something other than what the people of the constitution-writing era did; another is that judges may wrongly interpret constitutional provisions. But at least in principle (and in practice, especially in states, where the constitutions are easier to amend than the federal constitution) both problems can be solved through the constitutional amendment process.

But here the two judges are suggesting that the ultimate decisions are to be made by judges, and the people have no right to the final say on the subject. Under this theory, the judges end up being the ones who are sovereign, with the legal principles that they set forth being immune from control by the people. That, I think, would be a very bad result. Even if one thinks that sometimes judges may use this sovereign power in fairer ways than the people do, the same can be said about dictatorship or monarchy (or even dictatorship or monarchy limited to particular topics). The premise of democracy, including of constitutional liberal democracy, is that the best not the perfect, and often not even very good (consider Churchill's famous line about democracy), but the best place to repose sovereign power is in the people, not in Philosopher-Kings. And if the people of Massachussetts amend their state's Constitution to prohibit gay marriage, then so be it.

11 July:

From this morning's A New York Times:

"Perhaps most telling of all, the state's highest court ruled last week that gay couples cannot legally marry, and explained its decision by suggesting that heterosexual parents might be better suited to child rearing.

"Banning gay marriage is one thing in Georgia, and judges there did just that the very same day. But in New York? This supposed bastion of liberalism, the birthplace of the American Communist Party, the N.A.A.C.P. and the gay rights movement?"


Except that the judges didn't ban same-sex marriage, either in New York or in Georgia. They simply found no grounds to invalidate existing legal rules specifying that only opposite-sex marriages will be legally recognized. The bans were enacted by the legislature (in New York) or by the voters (in Georgia) -- the judges upheld the bans as constitutional, rather than banning gay marriage themselves.

The story later says that the New York court decision leaves the matter to the legislature, so the story isn't entirely mistaken on this score; the careful reader will grasp that characterizing the decision as involving "judges" "[b]anning gay marriage" is imprecise. Still, it's too bad that the concept of judges actually enacting a policy decision has gotten so confounded in people's (including journalists') minds with the concept of judges simply letting stand others' policy decisions.

"Tocqueville"