Passive Judges Blow One in Massachusetts

This law is not the mentally slow child whose many artistic talents you enjoy. This is the mannerless, racist second cousin whom you avoid. This is the noxious, prickly weed that will crowd and kill desirable plants; pull it, poison it, do what you must to remove it from your garden.

When the Massachusetts Supreme Judicial Court played Nervous Nelly on out-of-state couples wanting to marry here, it delayed and denied justice -- fundamentally not to offend those in other states. It was a sad day when only one justice (Roderick Ireland) was intellectually, legally and morally alert.

Comity -- acceding to other states' laws and court decisions -- is indeed the key issue here. Exactly as in the race laws of the past two centuries, including our own disgraceful 1913 pair, Massachusetts chose to play nice with bigoted courts elsewhere.

So, what has this gotten us in response? In large measure in direct reaction to the beginning of same-sex marriage here, did other states' courts and legislatures agree to give full faith and credit to our laws? Well, let's say absolutely not. Instead, over a dozen rushed laws or amendments onto their books to spit and stomp on our marriages.

Think. Think. Think. Was this form of one-sided comity useful to us or to the other states? Double ha! The states we are supposedly protecting from having to deal with messy gender equality have no intention of providing comity to us.

I read Left Center Left and enjoy many of Chris' posts. Personally, I find him a good companion. However, he is an incrementalist and at heart and mind a scholar. His politics are driven in large part by his sense of pragmatism filtered through a large base of general knowledge.

Chris' arguments include accommodation of the comfort level of Massachusetts residents "Having gay couples from out of state come in - and framing the issue as a national struggle rather than as a simple question of whether the Commonwealth is treating its citizens equally - increases that trapped feeling among voters." That one falls in the too-damned-bad class. On other big civil-rights issues, many were uncomfortable too. The burden should be on them to adapt, not on the whole society to continue discrimination until the mainstream is good and ready to wave the aspergillum over the decision. The latter would mean making law twice -- a little here, and then, let us know when you are ready for the whole thing. Rights often come in chunks.

Also, "out of state marriages forbidden will be by nature marriages largely symbolic (or legal test-case); they will not be valid in their home state. I think Massachusetts has taken a quiet pride that we have not become a media circus like San Francisco or New Paltz; symbolic marriages would assault that pride head-on." Here too, defining fairness by the perception of the most conservative does no one a service. Couples who want to test these laws at home have easy ways to do so without any changes in our old race laws. Come to Massachusetts for a month, rent an apartment, get utility bills, get a marriage license, get solemnized, and move back to your old state to be a martyr or hero. Claiming that making it easier will somehow alter the dynamic is naive at best.

Unfortunately, Chris and I see too many issues too similarly to have a real battle of the bloggers. On this one though, I sentence him to read and re-read Justice Ireland's dissent in the case. He was the judge of vision and courage, who, as one commenter on this blog wrote, "was the only one who got it right."

Justice Spina's majority opinion and some of the other concurring ones certainly lacked courage and were also questionable on letter and spirit of some of the legal issues. The 43-page decision in PDF here) is not bad reading and has lots of white space. There are surprising disagreements on fine points throughout. Concentrate on Ireland's dissent, beginning on page 23. It covers the key points of the majority opinion with his reactions and differing interpretations.

Ireland starts with his key points:

1. "...an appellate court must use a neutral, principled approach to decide every case before it."
2. "...the court articulated such a neutral, principled approach in Goodridge...holding that the liberty and equality provisions of the Constitution of Massachusetts prohibit the use of gender distinctions with respect to marriage."
3. "...Goodridge removed gender as an impediment to marriage (just as Loving v. Virginia, 388 U.S. 1 [1967], removed race as an impediment), and I believe that the rule of gender neutrality applies to the entire marriage statute."
4. "...principles of comity do not require rejection of the marriage license applications of nonresident same-sex couples."
   
5. "...the Commonwealth's resurrection and selective enforcement of a moribund statute, dormant for almost one hundred years, not only violates the "spirit" of Goodridge, as stated by the judge below, but also offends notions of equal protection. It is, at its core, fundamentally unfair."

As for claims that this pair of laws does not discriminate by gender, Ireland illuminates that cellar corner. He notes:

Under the present scheme, however, the marriage application unnecessarily asks applicants their gender, and then clerks impermissibly use this information to trigger mandatory action against nonresident marriage applicants. It is the latter use of the gender of the parties applying for a marriage license that circumvents the principle of gender neutrality established and carefully defined in Goodridge, supra, and misapplies our holding in that case.

Likewise, to the cowardly and ineffective comity issue, he treats it at length, concluding, "I do not believe that a discussion of comity is necessary in this case, where it is our marriage law that we are interpreting. Furthermore, even if comity applied to this case, our settled law prevents its application in the way now suggested."

Legally and morally, he is the SJC justice who has the clearest understanding of both the law and the related implications. Perhaps Ireland will become the new bugbear of the bigots.