Same Coast, Different
Worlds
on Same Sex Marriage
By Andrew Cohen,
Special to washingtonpost.com July 24, 2006
In an important new book, Jeffrey
Rosen, the law professor and influential legal author and commentator, argues
that judges serve America best by maintaining their legitimacy and authority and
that they do that when they hew close to popular sentiment on the most
controversial issues of our time. The judiciary is at its worst and most
vulnerable, Rosen contends, when it strikes down a federal or state law "in the
name of a constitutional principle that is being actively and intensely
contested by a majority of the American people."
Rosen was talking about federal judges -- the Supreme Court in particular -- but
let's run through his provocative thesis anyway using two controversial state
court rulings, several years apart, in two Blue-State venues which dealt
differently with the issue of the legality of same-sex marriage. In
Massachusetts, in 2004, the answer was yes, same-sex couples could legally
marry. In New York, earlier this month, the answer was no, they could not.
Is one court right and the other wrong? Maybe. But which one?
I found it impossible to read both decisions back to back and not conclude as
though the disposition of the two cases were just a couple of crapshoots, the
results of which depended entirely upon the particular tender mercies of the
judges. Maybe that alone proves Rosen's point. Or maybe he is trying
to give way too much credit to judges who do less and way too little credit to
judges who do more. Either way, the two decisions, taken together, provide
a laughable (if it weren't so serious) example of how judges can take away from
the same legal well completely different tasting water.
If you buy Rosen's argument, and many reasonable people do, the Massachusetts
Supreme Court acted rashly when it struck down the Commonwealth's marriage
license statute since the issue of same-sex marriage was "being actively and
intensely contested" in the state. By the same token, Rosen would argue
that the New York Supreme Court wisely backed away from overturning the Empire
State's marriage statute in the perceived absence of some clear expression of
popular will -- channeled preferably through the legislature. And, indeed,
media coverage of the New York ruling, which did not change the status quo, was
tepid and polite compared to the tumult which accompanied the Bay State court's
declaration two years ago, which did change the law.
In the Massachusetts' ruling, the court's majority ruled that there was no
"rational basis" for any of the three legislative rationales for promoting
heterosexual marriage but not homosexual marriage. In the New York case,
the court's majority ruled that "there are rational grounds on which the
Legislature could choose to restrict marriage to couples of opposite sex."
The "rationales" offered in both states to defend heterosexual marriage laws
were not terribly dissimilar. What was different was the way the two
majorities viewed them.
In Massachusetts, Chief Justice Margaret H. Marshall dismissed in a 4-3 opinion
the legislative rationale that "confining marriage to opposite-sex couples
ensures that children are raised in the 'optimal' setting." She wrote:
"It cannot be rational under our laws, and indeed it is not permitted, to
penalize children by depriving them of State benefits because the State
disproves of their parents' sexual orientation."
In New York, on the other hand, Judge Robert S. Smith for a 4-2 majority wrote
that "the legislature could find that unstable relationships between people of
the opposite sex present a greater danger that children will be born into or
grow up in unstable homes than is the case with same-sex couples, and thus
promoting stability in opposite-sex relationships will help children more."
And, in case that left any doubts about where he was headed, he added:
"The Legislature could rationally believe that it is better, other things being
equal, for children to grow up with both a mother and a father."
In Massachusetts, the majority did not need to declare that the right of
homosexuals to marry one another is a "fundamental" constitutional right worthy
of heightened protection. Even without that stricter level of scrutiny,
the majority held, the Massachusetts marriage licensing scheme had to fall.
In New York, however, Judge Victoria A Graffeo spent a great deal of time and
space in her concurring ruling explaining why there is no fundamental right "to
marry someone of the same sex."
Three of the judges who voted against same-sex marriage in New York are
appointees of Governor Pataki. But three of the four justices who voted in
favor of same-sex marriage in Massachusetts also are Republican appointees.
In one case, bright judges refused to allow the legislature alone to "control
and define the boundaries" of the institution of marriage. In another
case, bright judges declared that "any expansion of the definition of marriage
should come from the Legislature." Ultimately, perhaps, when enough of
these state supreme courts chime in on the issue of same-sex marriage, and when
there is enough of a dispute among them, the Supreme Court will get involved.
Until then, though, we are stuck with seeing these two contrasting decisions
through Rosen's prism. Did the Massachusetts court rush ahead of public
opinion and thus do damage to its own credibility and authority -- not to
mention, paradoxically, the cause of same-sex marriage rights? Or are the
four Justices who gave same-sex couples the right to marry the brave and
farsighted successors-in-interest to the Justices of the Supreme Court who in
1954 pushed the country toward desegregated schools with their Brown v. Board
of Education decision?
That seminal case a half century ago, remember, was decided in large part upon
"social science" evidence introduced by the black plaintiffs establishing to the
satisfaction of the Court that separate and equal was anything but. There
are echoes of that fight today. In the New York same-sex ruling, Judge
Smith noted that "social science literature reporting studies of same-sex
parents and their children" did "not establish beyond doubt that children fare
equally well in same-sex and opposite-sex households. What they show, at
most, is that rather limited observation had detected no marked differences."
So did the New York court conserve its own authority and credibility and
legitimacy by declaring that it would not recognize same-sex marriage until the
state legislature did? Did it ensure its own power for future
controversies by voluntarily limiting the scope of its impact in this case?
Did it wisely wait and not get too far out in front of the politicians and the
people? Or is it wrong for judges to ever wait for public sentiment to
fully and fairly match legal theory before coming to the defense of minorities
groups who seek a certain status or want protection from a certain kind of
discrimination?
One thing is clear. The majorities in the two cases, residing in
neighboring states, both of which are heavily Democratic, took two almost
identical fact patterns, applied many of the same legal arguments, reviewed the
exact same Supreme Court precedent, and came to completely contradictory
conclusions about whether homosexual couples should enjoy the same benefits as
heterosexual ones when it comes to marriage. And if that doesn't make you
wonder about how reasoned justice works, or whether it works at all, then there
no sense even reading Rosen's book.
Andrew Cohen writes "Bench Conference" and this regular law
column for washingtonpost.com. He is also CBS News Chief Legal Analyst.
His columns for CBS can be found online here.
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