Another proposal

[Scarberry, Mark]

In response to Trevor, if our NRO piece had begun with an explanation of why
the SJC's decision was wrong, we never would have gotten to what Matt called
our "fresh thinking." Op-ed pieces have severe word-count limits. Many
people believe the Mass. SJC got it wrong, and it's worth discussing what
the remedy might be for such "waywardness."
 
On the merits, the various dissents in the original case and in the advisory
opinion provide plenty of reason to think that the majority overstepped the
bounds of its judicial role. I'd refer Trevor to those dissents. I'd also
refer him to the reservation of power to the people in the Mass.
Constitution (quoted in our op-ed) and the absence of any pretense that the
people intended this result when they enacted the relevant provisions of the
Mass. Constitution, including most recently, IIRC, in 1976.

The majority's viewpoint (at least the viewpoint of 3 of the 4 in the
majority) is that it is irrational not to extend marriage to same-sex
couples. I don't recall the majority making any serious argument based on
any peculiar provision in the text of the Mass. Constitution (as opposed to
the reasoning of the New Hampshire S. Ct. that, IIRC, relied heavily on
idiosyncratic constitutional text). We've had plenty of discussions on this
list of the rationality or irrationality of laws that deny marriage to
same-sex couples. I don't have anything more to add today.

Of course, the Goodridge majority (or rather plurality) attempted to argue
that the limitation was irrational due in part to the Mass. legislature's
prior willingness to allow gay and lesbian persons to adopt children (and
other similar steps taken by the legislature). I believe the dissents deal
convincingly with this argument. Anyway, gay and lesbian rights advocates
may be reluctant to make too much of this kind of argument; it invites
legislatures to refuse such rights to gays and lesbians in order to help
establish the rationality of the refusal to allow same-sex marriage. The
inability of the SJC to understand the rationality of the distinctions made
in Mass. law could thus have the unfortunate effect of requiring more of a
blanket approach to such issues, with negative effects on gay and lesbian
persons. 

I'd be happy to discuss further any particular provisions of the Mass.
Const. or of Mass. statutory law that anyone thinks justify a different
result under the Mass. Constitution than under the U.S. Constitution's equal
protection and due process clauses.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Trevor Morrison [mailto:trevor-morrison at postoffice.law.cornell.edu] 
Sent: Wednesday, February 11, 2004 11:53 AM
To: conlawprof at lists.ucla.edu
Subject: Re: Another proposal

Okay, I'll bite.  The criticisms of Goodridge leveled by President Bush, 
Professors Scarberry and Kmiec, and others are premised on the proposition 
that the decision is clearly wrong.  The problem, though, is that these 
criticisms tend to omit any discussion of the Massachusetts constitution 
and the SJC precedents construing it.  The President's denunciation of 
"activist judges" during the State of the Union was clearly meant as a shot 
across the SJC's bow.  But I'm unaware of any official statement from the 
White House detailing what was wrong with the SJC's interpretation of the 
Massachusetts constitution, other than that it reached an outcome the White 
House doesn't like as a policy matter.  In their NRO piece, Professors 
Scarberry and Kmiec ask whether "there [is] any hope that Massachusetts can 
right the wayward thinking of its judges?"  But what makes their thinking 
wayward?  Like the President, Professors Scarberry and Kmiec fail to show 
with any specificity what the SJC did wrong in Goodridge, other than 
reaching a result they don't like.

To be clear, I am no expert on the Massachusetts constitution.  That's in 
part why I feel ill equipped to defend or assail the Goodridge decision as 
a legal matter --- I don't know whether or not it's based on a sound 
interpretation of the Massachusetts constitution and the SJC's own 
precedents construing that text.  Maybe it is; maybe it isn't.  But if one 
is going to take a public stand for or against the decision, and especially 
if one is a legal professional, shouldn't the stand begin with a discussion 
of whether Goodridge read the Massachusetts constitution correctly?  How 
can one label the SJC impermissibly "activist" or "wayward" without first 
establishing that point?

To be sure, our own policy preferences will undoubtedly play a role here, 
so that those inclined to oppose Goodridge on policy will likely find a way 
to do so on legal grounds.  But unless we're just going to abandon the 
"pretense" of law altogether, shouldn't we at least play the game and 
pretend to engage in legal analysis?

Trevor Morrison

Assistant Professor of Law
Cornell Law School



At 01:43 PM 2/11/2004 -0500, Matthew J. Franck wrote:
>Mark Scarberry, familiar to list members, has co-authored a piece with 
>some fresh thinking on the Massachusetts situation; see
>  http://www.nationalreview.com/comment/kmiec_scarberry200402110925.asp
>
>Matt
>
>***************************
>Matthew J. Franck
>Professor and Chairman
>Department of Political Science
>Radford University
>P.O. Box 6945
>Radford, VA 24142-6945
>phone 540-831-5854
>fax 540-831-6075
>e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu
>www.radford.edu/~mfranck
>***************************
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Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
607-255-9023

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