Supreme
Court Paved Way for Marriage Ruling With Sodomy Law Decision
New York Times,
November 19, 2003
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http://www.nytimes.com/2003/11/19/national/19RULI.html
By Linda Greenhouse
WASHINGTON—In its gay rights decision five months
ago striking down a Texas criminal sodomy law, the Supreme Court said gay
people were entitled to freedom, dignity and “respect for their private
lives.” It pointedly did not say they were entitled to marry.
In fact, both Justice Anthony M. Kennedy, in his majority opinion for five
justices, and Justice Sandra Day O’Connor, in her separate concurring
opinion, took pains to demonstrate that overturning a law that sent consenting
adults to jail for their private sexual behavior did not imply recognition of
same-sex marriage, despite Justice Antonin Scalia’s apocalyptic statements
to the contrary in an angry dissent proclaiming that all was lost in the
culture wars.
The Texas case “does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter,”
Justice Kennedy wrote. And Justice O’Connor wrote: “Unlike the moral
disapproval of same-sex relations—the asserted state interest in this
case—other reasons exist to promote the institution of marriage beyond mere
moral disapproval of an excluded group.”
And yet, despite the majority’s disclaimers, it is indisputable that the
Supreme Court’s decision in Lawrence v. Texas
also struck much deeper chords. It was a strikingly inclusive decision that
both apologized for the past and, looking to the future, anchored the
gay-rights claim at issue in the case firmly in the tradition of human rights
at the broadest level.
And it was this background music that suffused the decision Tuesday by the
Massachusetts Supreme Judicial Court that same-sex couples have a state
constitutional right to the “protections, benefits, and obligations of civil
marriage.” The second paragraph of Chief Justice Margaret Marshall’s
majority opinion included this quotation from the Lawrence decision: “Our
obligation is to define the liberty of all, not to mandate our own moral
code.”
“You’d have to be tone deaf not to get the message from Lawrence that
anything that invites people to give same-sex couples less than full respect
is constitutionally suspect,” Professor Laurence H. Tribe of Harvard Law
School said in an interview. Professor Tribe said that had the Texas case been
decided differently—or not at all—“the odds that this cautious,
basically conservative state court would have decided the case this way would
have been considerably less.”
The Massachusetts decision was based on the state’s Constitution, which
Chief Justice Marshall described as “if anything, more protective of
individual liberty and equality than the federal Constitution.” She said the
Massachusetts Constitution “may demand broader protection for fundamental
rights; and it is less tolerant of government intrusion into the protected
spheres of private life.”
Clearly, the state ruling, Goodridge v. Department of Public Health, was
not compelled by the Supreme Court’s decision in Lawrence v. Texas and,
given its basis in state law, cannot be appealed to the Supreme Court. Whether
it will influence other state high courts remains to be seen. A similar case
in the New Jersey state courts was dismissed this month at the trial level and
is now on appeal.
Yet just as clearly, the Massachusetts decision and the Lawrence ruling
were linked in spirit even if not as formal doctrine. The Goodridge decision
“is absolutely consistent with and responsive to Lawrence,” Suzanne
Goldberg, a professor at Rutgers University Law School who represented the two
men who challenged the Texas sodomy law in the initial stages of the Lawrence
case, said in an interview. Ms. Goldberg added: “It’s impossible to
overestimate how profoundly Lawrence changed the landscape for gay men and
lesbians.”
Professor Goldberg said that sodomy laws, even if not often enforced, had
the effect of labeling gays as “criminals who deserved unequal treatment.”
With that argument removed, discriminatory laws have little left to stand on,
she said, adding that the Supreme Court “gave state courts not only cover
but strength to respond to unequal treatment of lesbians and gay men.”
The Massachusetts court considered and rejected the various rationales the
state put forward to defend opposition to same-sex marriage. These included
providing a “favorable setting for procreation” and child-rearing and
defending the institution of marriage.
“It is the exclusive and permanent commitment of the marriage partners to
one another, not the begetting of children, that is the sine qua non of civil
marriage,” Chief Justice Marshall said. Noting that the plaintiffs in this
case “seek only to be married, not to undermine the institution of civil
marriage,” she said, “The marriage ban works a deep and scarring hardship
on a very real segment of the community for no rational reason.”
The decision will usher in a new round of litigation. The federal Defense
of Marriage Act anticipated this development by providing that no state shall
be required to give effect to another state’s recognition of same-sex
marriage.
On the books since 1996, the law has gone untested in the absence of any
state’s endorsement of same-sex marriage. With 37 states having adopted laws
or constitutional provisions defining marriage as between a man and a woman,
same-sex couples with Massachusetts marriage licenses may soon find themselves
with the next Supreme Court case in the making.
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