DLaycock at mail.law.utexas.edu
Thu Feb 12 12:32:31 PST 2004
Portsmouth, NH is a port (at the mouth of a river). New Hampshire
has 23 miles of seacoast. Vermont is landlocked; it was created to resolve
a border dispute between New York and New Hampshire. All or some part of
that is the way to remember.
At 07:16 AM 2/12/2004 -0800, Scarberry, Mark wrote:
>My reference to New Hampshire in the post below should have been a reference
>to Vermont (and to the Common Benefits clause of its Constitution).
>Flashback to grade school geography: Now which of those tiny little states
>is Vermont, the one on the left or the one on the right?
>From: Scarberry, Mark
>To: conlawprof at lists.ucla.edu
>Sent: 2/11/04 4:50 PM
>Subject: RE: Another proposal
>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
>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
>To post, send message to Conlawprof at lists.ucla.edu
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