Another proposal

Fri Feb 13 10:51:21 PST 2004

The issue before the SJC in Goodridge was whether the existing Mass. law
that excluded same-sex couples from marriage, and thus from all the benefits
of marriage, violated the Mass. Constitution. It was not unreasonable of the
Mass. Senate to think that a case involving a new legal scheme under which
same-sex couples could receive all the benefits of marriage except for the
label might be distinguishable. Judges make law, appropriately, by deciding
the cases brought to them. I don't think a good theory of judicial
decision-making would support the argument that the SJC would violate the
policies behind stare decisis by upholding the Mass. Senate's approach were
it to be implemented and a case brought challenging it. Thus it may be that
the members of the SJC in the advisory opinion matter should have suggested
that the question was open. I don't think the members of the SJC should have
treated their prior opinion in Goodridge as if it were a statute. 

Even so, I could not say with confidence that the SJC overstepped the bounds
of its role under the Mass. Constitution simply by opining on the
constitutionality of the Senate bill. To that extent, I have to agree with
Marty and disagree with J. Frank. (And Marty certainly has spent a lot more
time than I have considering the requirements and limits of the Mass.
provision for advisory opinions.) 

Initially I was confused and thought J. Frank was Matthew J. Franck, whose
post started this thread. Other list members may also have been confused and
may wish to note the difference in the names and e-mail addresses. This is
not to suggest that J. Frank's views should be discounted, but it's helpful
to me to keep the voices in our conversation distinct.

Mark S. Scarberry

Pepperdine University School of Law

-----Original Message-----
From: Marty Lederman [mailto:marty.lederman at comcast.net] 
Sent: Friday, February 13, 2004 9:17 AM
To: J Frank; conlawprof at lists.ucla.edu
Subject: Re: Another proposal

Full disclsoure:  I was one of the authors of the amicus brief in question.
But I write here only on my own behalf, not for the 90 amici.

I think J. Frank is simply mistaken in suggesting that the Justices
"ignored" the argument in that amicus brief, or that the brief can fairly be
cited as authoriity for the accusation that the Justices in the majority
"overstepped the bounds" of their advisory-capacity role.  To be sure, in a
footnote we suggested that perhaps the question was so straightforward in
light of Goodridge that no "serious doubt," and thus no "solemn occasion,"
was present, in which case the Justices could decline to answer and simply
conclude that Goodridge resolved the question.  But the remaining 99% of the
brief was devoted to arguing that if the Justices answered the question, (i)
they were obliged to do so on the basis of their best reading of Goodridge
itself; and (ii) that under the only reaonable reading of Goodridge, the
Senate bill was unconstitutional.

That is exactly what the four Justices did.  They did not start from
stratch, and did not "sweepingly opine[]" anything that they had not already
decided in Goodridge.  Nor did they purport to be issuing any opinion that
would supersede Goodridge for purposes of precedent in future cases.
Instead, in quite short order, the Justices explained that the
unconstitutionality of the civil unions bill followed as a matter of course
from Goodridge itself:  "Because the proposed law by its express terms
forbids same-sex couples entry into civil marriage," the Justices explained
at page 9, "it continues to relegate same-sex couples to a different status.
The holding in Goodridge, by which we are bound, is that group
classifications based on unsupportable distinctions, such as that embodied
in the proposed bill, are invalid under the Massachusetts Constitution."

See also id. at 8 ("The very nature and purpose of civil marriage, the court
concluded [in Goodridge], renders unconstitutional any attempt to ban all
same-sex couples, as same-sex couples, from entering into civil marriage.");
id. at 11-12 ("The bill would have the effect of maintaining and fostering a
stigma of exclusion that the Constitution prohibits. It would deny to
same-sex 'spouses' only a status that is specially recognized in society and
has significant social and other advantages. The Massachusetts Constitution,
as was explained in the Goodridge opinion, does not permit such invidious
discrimination, no matter how well intentioned."); id. at 14 ("[T]he
question the court considered in Goodridge was not only whether it was
proper to withhold tangible benefits from same-sex couples, but also whether
it was constitutional to create a separate class of citizens by status
discrimination, and withhold from that class the right to participate in the
institution of civil marriage, along with its concomitant tangible and
intangible protections, benefits, rights, and responsibilities. Maintaining
a second-class citizen status for same-sex couples by excluding them from
the institution of civil marriage is the constitutional infirmity at
issue.").

----- Original Message ----- 

From: "J Frank" < <mailto:jfrank9101889 at fastmail.fm>
jfrank9101889 at fastmail.fm>

To: < <mailto:conlawprof at lists.ucla.edu> conlawprof at lists.ucla.edu>

Sent: Friday, February 13, 2004 10:58 AM

Subject: Re: Another proposal

Mark Scarberry is right that the dissents to the Goodridge decision and the
advisory opinion provide ample reason to think the majority overstepped the
bounds of its judicial role.  That conclusion is also supported by the
amicus brief submitted by Larry Tribe and 89 other professors circulated to
the list on Jan. 12 (copy also available at
<http://www.glad.org/marriage/Advisory_Opinion_Brief_Constitutional.pdf>
http://www.glad.org/marriage/Advisory_Opinion_Brief_Constitutional.pdf).

The amicus brief strongly suggested that the justices should decline to
issue any advisory opinion (pages 31-32, footnote 37).  The brief argued
that if an advisory opinion were issued at all, it needed to be articulated
as issued not by the justices sitting as a court, but as issued "by the
justices as individuals in their capacity as constitutional advisers of the
other departments of the government."  Page 5.  See also page 8 (justices in
giving advisory opinion function merely as "learned legal advisors to the
political branches"); page 33 (justices do not function "as a court"); page
35, footnote 46 (justices merely "addressing the political branches as legal
advisors").  The brief also noted that any advisory opinion(s) the justices
might issue would not be binding precedent, and therefore the ambit and
effect of the Goodridge decision could only be resolved through its
application in a future case, and thus the constitutionality of the proposed
civil unions bill could only be resolved in such a future case.  See pages
5-6 ("when sitting in their judicial capacities on the SJC the Justices are
not to treat any opinion that they or their colleagues or predecessors may
have expressed in their advisory capacity as binding precedent, entitled to
stare decisis effect."); page 34 ("if Senate No. 2175, or a similar bill,
were to be enacted and were then to become the subject of litigation, it
would be the SJC's Goodridge decision, not the subsequent advisory opinion
of the Justices, that would control the adjudication of that law's validity
in the state's courts.").

This analysis was ignored by the four justices who were in the majority in
Goodridge.  In  their advisory opinion (
<http://www.state.ma.us/courts/opinionstothesenate.pdf>
http://www.state.ma.us/courts/opinionstothesenate.pdf) they sweepingly
opined that a civil union statute would violate the Massachusetts
Constitution, viewing it as impossible for the legislature to compile a
legislative record establishing a rational basis for such legislation.  See
page 10, footnote 3 ("this proposed legislation fails to provide a rational
basis" for the distinction between marriage and civil union); see also page
14.  The hubris Mark appropriately notes is all the more jarring given that
the justices had before them an amicus brief submitted by Tribe and 89 other
professors suggesting they should not issue an advisory opinion at all, and
pointing out that any advisory opinion they issued would not be binding
precedent as to the constitutionality of a civil unions statute.

Some who submitted the amicus brief presumably disagree with this
overstepping of the proper judicial role explicated in the amicus brief.
Perhaps delight at the outcome makes them reluctant to criticize the
impropriety of such a sweeping judicial pronouncement in the advisory
opinion context in the absence of a full legislative record.  Even if those
who filed the amicus brief out of a professed concern for high principle are
quiet on this point, perhaps others who are critical of the advisory opinion
should cite the amicus brief.

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