Faculty in the News
michael cassidy and charles "buzzy" baron
The New York Times
February 6, 2004
Copyright 2004 The New York Times Company
Friday, Late Edition - Final
Normally, the seven judges on the Massachusetts Supreme Judicial Court go to great lengths to reach consensus. At the very least, court observers say, if the justices cannot achieve unity, they usually express their opinions in a civil and respectful tone.
But that collegiality appears to have unraveled under the pressure of deciding whether to allow same-sex couples to marry. One of the most surprising things about Wednesday's 4-to-3 decision establishing gay marriage in Massachusetts, court observers say, was the degree of disagreement among the justices and the sometimes strident language they used to express it.
"There's an extraordinary level of invective that isn't characteristic of this court, which over their history has strived for collegiality and civility," said R. Michael Cassidy (webpage) , a Boston College law professor who follows the court closely. "It reflects how much they struggled over this decision and apparently how badly it's affected their relationship."
For example, the majority opinion that only marriage, and not civil unions, would be permissible under the state Constitution was brusquely dismissive of Justice Martha B. Sosman's dissenting argument that civil unions would give gays exactly what marriage would, except for the ability to name it marriage.
Reacting to Justice Sosman's reference to the "Romeo and Juliet" line "That which we call a rose, by any other name would smell as sweet," the majority fired back:
"The denomination of this difference by the separate opinion of Justice Sosman as merely a 'squabble over the name to be used' so clearly misses the point that further discussion appears to be useless."
Justice Sosman, in turn, accused the majority of being "activist" and said that the majority opinion "merely repeats the impassioned rhetoric" of gay marriage supporters who filed briefs in the case.
For Justice Sosman to write a 19-paragraph dissent -- as long as the majority opinion -- was unusual.
"There's a long tradition in the court of very few dissents," Professor Cassidy said. "When there are dissenting opinions, they are generally short and respectful."
While judges on Massachusetts' highest court have certainly disagreed before, notably on issues like the death penalty and search and seizure, it is unusual for their battles to become so pitched and especially for them to be aired in public.
"It's extremely rare," said Russell K. Osgood, the editor of a book on the court and president of Grinnell College in Iowa. "One possibility is that they feel insecure" in making such a bold decision, he said. "I think the more likely possibility is that there's real acrimony between them, so much that they overstate things and state things more stridently than they need to."
Mr. Osgood expressed dismay over the public expression of enmity. "It undermines the sense that justice is truly and significantly fair-minded and disinterested, rather than adversarial," he said. "Justices shouldn't brawl with each other in public."
The decision also reflected a sharp change in tone toward the State Legislature, which had sought Wednesday's opinion by asking if a civil unions bill would comply with the court's November decision that gays were legally entitled to marry.
In the November decision, the same four justices appeared to take pains to be respectful toward the Legislature. They gave the Legislature 180 days to "take such action as it may deem appropriate."
In Wednesday's decision, however, the majority opinion almost scolded the Legislature for asking the court if civil unions would pass muster.
"The answer to the question is 'No,' " the justices wrote, calling the civil unions bill "an attempt to circumvent the court's decision."
Charles Baron (webpage), a law professor at Boston College, said he believed the justices were frustrated with the Legislature because they viewed the civil unions bill as, in some ways, worse than the question they originally considered, whether the state's long-established marriage law could exclude same-sex couples.
"You couldn't claim that the original statute was written with an intent to discriminate; nobody even thought of gays getting married then," Professor Baron said. "But what the civil unions statute does is just that. It says that we the straights don't want to share our institution of marriage with the gays. Even though the impact may be less than the original statute, the stigma is greater."
Several legal experts said all seven justices were highly qualified, and that Justice Sosman and Chief Justice Margaret H. Marshall, in particular, were known for their sharp and probative intelligence.
All but one of the justices were appointed by Republican governors. They are not, for the most part, considered ideologues, and their views are often difficult to pigeonhole, experts say.
Chief Justice Marshall, who is married to Anthony Lewis, a former columnist for The New York Times, is frequently considered the most liberal of the justices, although experts say her opinions are not always predictable. A native of South Africa, Chief Justice Marshall, 59, led anti-apartheid movements as a student there and later in the United States. Before becoming a judge in 1996, she served as a corporate litigator, as Harvard's general counsel, and as a leader of the Boston Bar Association.
Her appointment as the first woman to be chief justice in 1999 by Gov. Paul Cellucci, a Republican, was controversial, opposed by abortion rights opponents because years before she had served on the board of a center that performed abortions.
Justice Sosman, 53, is a former prosecutor in the United States attorney's office here, and later formed an all-female law practice at a time when such firms were not common.
Several experts said they were surprised that Justice Judith A. Cowin, 61, a former prosecutor thought to be one of the court's most conservative members, was part of the majority.
The other majority members were Justice Roderick L. Ireland, the court's first African-American judge and a former juvenile court jurist, and Justice John M. Greaney, appointed by a Democrat and often considered a centrist on the court.
The other dissenters were Justice Robert J. Cordy, a former legal counsel to Gov. William F. Weld, a Republican, and Justice Francis X. Spina, another former prosecutor.
Mr. Osgood said that the court, over 300 years old, is conscious of its history, which is full of precedent-setting rulings.
These justices, however, are relative newcomers, all but one of them having served less than eight years.
"Perhaps they haven't had time to coalesce into the kind of collegiality that their predecessors had," said Andrew L. Kaufman, a Harvard law professor. He pointed out that the kind of language used in Wednesday's decision and dissent "is nothing compared to what you see in the U.S. Supreme Court." But, he added, "for this court, it's unusual. It's evidence of strong feelings."