Another proposal

Marty Lederman marty.lederman at
Fri Feb 13 14:16:10 PST 2004

1.  The principal aim of Part I of the Argument of our brief was to demonstrate that, in light of the holdings and rationale of Goodridge itself, in fact it would be unreasonable "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" from Goodridge.  But I have little to add to that argument beyond that which appears in the brief, which speaks for itself.

2.  Mark writes that "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."  I'm not sure which of two things Mark means here:

(a)  If he means that the SJC could uphold the Senate bill even if it were applying stare decisis, I think that is mistaken -- again for the reasons given in Part I of our brief.

(b)  If, on the other hand, Mark means that there would, in such an adjudicated case, be grounds for the SJC to uphold the civil-unions law by ignoring or overcoming stare decisis, I disagree with that, too, for the reasons stated at pages 40-42 of the brief.  But even if Mark or others dispute this point, and think that there would be grounds for the SJC, in its adjudicatory capacity, to ignore the stare decisis effect of Goodridge, that would not change the fact that the Justices, in this advisory proceeding, were bound by Goodridge, and thus had little choice but to rule as they did in their role as legal advisors to the Legislature.

  ----- Original Message ----- 
  From: Scarberry, Mark 
  To: conlawprof at 
  Sent: Friday, February 13, 2004 1:51 PM
  Subject: RE: Another proposal

  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] 
  Sent: Friday, February 13, 2004 9:17 AM
  To: J Frank; conlawprof at
  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" <jfrank9101889 at>

  To: <conlawprof at>

  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

  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 ( 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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