The SJC ruled 4-3 last week that homosexual couples have a constitutional right to marry. The ruling in Goodridge v. Department of Public Health was stayed for 180 days to allow for legislative action.
Prof. Charles Baron (Law), past president of the Civil Liberties Union of Massachusetts, hesitated to predict the response of Gov. Mitt Romney and Massachusetts legislative leadership to the court decision, but cautioned proposals to establish same-sex civil unions, rather than marriages, may not meet the court's test:
"Chief Justice Margaret Marshall, in her opinion, mentions the tangible benefits of civil marriage, but she also speaks of the intangibles: 'Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.'
"So what she seems to be saying is, you can't have a law establishing a union that provides only some of the benefits of marriage."
Boisi Center for Religion and American Public Life Director Alan Wolfe, a political scientist and sociologist who has interviewed Americans across the country for his recent books Moral Freedom and One Nation After All, said "the decision is in front of where public opinion is on the issue.
"Public opinion [on homosexuality] has become much more tolerant...but has not reached the point of endorsing gay marriage. All the polls show a substantial majority oppose gay marriage."
He said his own findings echo those of a poll released by the non-partisan Pew Research Center last week that indicated same-sex marriage is opposed by 59 percent of Americans, and by 80 percent of Americans identified as having a high level of religious commitment.
"Marriage is a public act. For Catholics it's a sacrament. It's not just something that goes on behind bedroom doors," Wolfe said.
Wolfe, who has been quoted by the New York Times as describing the Goodridge decision as "pretty close to an earthquake politically" and "exactly the right kind of material for a backlash," said the ruling will rank high on the scale of polarizing issues if not at the very top.
"The Civil War is one, and Roe v Wade is second," he said. "This is big and divisive, but not that big."
He dismissed the argument that the Massachusetts high court had overstepped its bounds and imposed its will by fiat: The court was doing its job, Wolfe said, by making a ruling - no matter how unpopular - to remedy what it perceived as a breach of constitutional rights.
"The decision is very well-argued," he said. "It's an impressive decision whether you agree with it or not.
"A court is supposed to lead public opinion, if they are convinced as judges a constitutional right is violated. I don't think the judicial tyranny line will stick."
Wolfe predicted the ruling will cause many states to pass laws defining marriage as between a man and a woman. He sees same-sex marriage being made a major issue in the 2004 presidential race if the Democrats nominate Howard Dean, who signed civil-unions into law as Vermont governor.
And he said the issue may particularly resonate among African-Americans, who nearly universally support Democrats - but who he said also overwhelmingly oppose homosexuality. He predicted Republicans will use the issue of same-sex marriage to try to break the lock Democrats have heretofore held on black voters.
Assoc. Prof. Dennis Hale (Political Science) said post-ruling politicking - as in Cambridge, where city councilors have proposed to ignore the waiting period and begin issuing gay-marriage licenses immediately - demonstrates social policy is better made in a legislative process that ensures debate before, not after, a decisive vote is taken.
"Whatever they do in Cambridge, the law is pretty clear," said Hale. "The court gave the legislature 180 days to 'change the law', which means that until they do so, the law is just what it was the day before the court issued its ruling.
"But there is likely to be a lot of grandstanding on this issue. Cambridge, after all, has its own nuclear disarmament policy and its own immigration policy - having its own marriage law is a relatively trivial matter!
"But that is just another reason why it is better for social policy to be made in the legislature, where the ramifications of a policy can be publicly (even noisily) debated, than in the hushed precincts of the judicial mind, where no unwanted complications are ever allowed to intrude."
Baron said Goodridge reflects a three-decade trend in which state supreme courts have reemerged as the primary source for protection of individual rights.
He cited the Texas decision earlier this year striking down laws against sodomy, as well as other states' rulings that affirmed patients' rights to refuse medical treatment or upheld the citizens' rights to obtain signatures for nomination papers at shopping malls.
"Early in our country's history, states were the protectors of individual rights. But in the years following the Civil War, people began to look more and more to the US Supreme Court for that protection. During that time, you found state courts taking much of their cues from Supreme Court opinions.
"In the last 30 years, however, the pendulum has swung the other way. What's more, the state supreme courts are looking at one another's decisions, and even at courts in other countries, in writing their own," said Baron, noting Massachusetts SJC Chief Justice Marshall's opinion contains a reference to an Ontario Supreme Court ruling.
Baron said the labeling of the Massachusetts SJC as an "activist judiciary" is at once apt yet misleading. "Is this is an example of an activist court? Well, yes. But that can be said of practically any judiciary, including the US Supreme Court. The 'activist' label, more often than not, seems to be applied by conservatives to a legal decision they do not support.
"But judicial activism is a role that Anglo-American courts have played for centuries. So much of what we take for granted as principles of individual liberties were first developed by common law courts."
-Mark Sullivan and Sean Smith
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