The Massachusetts decision

[rsc]

There's only so much fine-print legalese I can read at one sitting, but I've made my way through the principal majority opinion (by Chief Justice Margaret Marshall). I decided to post an entry of my own rather than continuing the discussion in fj's journal.

I'm considerably heartened by what I've read so far. The opinion makes specific reference to the Ontario decision, and no mention at all of Vermont. It refers throughout to "civil marriage", and asserts repeatedly that the restriction of marriage to opposite-sex couples has no "rational basis".

Best of all, the remedy says the following:

"We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

I read this as saying that they're ordering the lower court to rule for the plaintiffs, but that they're staying the judgement for 180 days to give the Legislature a chance to fix the law (i.e., bring it into accordance with the Constitution as determined by the SJC's ruling). What this suggests to me is that if the Legislature fails to act, the judgement goes into effect, and the state would have to sue in order to try to prevent it. (I'm not a lawyer by any stretch of the imagination, so I could be completely off base, but that's how it reads to me.)

My reading of the opinion also suggests that Vermont-style civil unions wouldn't meet the court's standard, but I might be wrong about that too.

Nonetheless, I think I'll hold off on ordering the gown.

Comments

[urso.livejournal.com]

It's my understanding that the ruling specifically requires "marriage" and not a marriage equivalent, such as in Vermont.

It's also my understanding that the soonest the state can ammend its own constitution is November 2006, one and a half years after May 2004, when presumably same-gender couples will be allowed to marry.

[slinkr.livejournal.com]

I also read the majority opinion as not leaving much of an opening for civil unions or other separate-but-equal accomodations, but I'm not a lawyer.

It's going to be very interesting to see what the Legislature does with this.

[rsc.livejournal.com]

Your understanding on the second point is correct, and I think you're right on the first one as well.

By a happy coincidence, John and I are just back from a fund-raising party for Jarrett Barrios, our openly gay state senator. Everything he said about the decision confirms (and indeed exceeds) my most hopeful interpretations. He says that it's quite definitely true that if the Legislature does nothing in 180 days, the decision automatically goes into effect -- marriage licenses for same-sex couples will be required to issue.

Even more interesting, he says that there's nothing in the decision that prevents cities and towns from issuing such licenses immediately. And two Cambridge city councillors have filed an order requesting the city clerk to do just that, to be on the agenda of next Monday's meeting. John predicts that it will be postponed for at least one meeting so the legal department has a chance to make sure they agree that it's legal, but once it comes up for a vote it seems pretty well assured that there will be 5 or 6 (out of 9) votes for it.

So in the best-case scenario, same-sex marriages could start happening within a couple of weeks. (We'll be out of town next week, so we might not get to be in the first wave.)

And the point about the timing on amending the Constitution is important. As one of the abovementioned city councillors said, it's harder to get people to vote to take something away than to vote to not grant it in the first place.

I asked Jarrett privately what he thought the prospects for the (state) constitutional amendment were, and he (wisely) declined to amke a prediction.