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Wiggle room? What wiggle room?
BY HARVEY SILVERGLATE
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In the last week, those who oppose the rights of same-sex couples to wed have pointed to several aspects of the Massachusetts Supreme Judicial Court’s ruling to show that the court is open to the idea of a civil-union bill creating a separate-but-equal system of civil contracts for lesbian and gay couples who wish to marry. Let’s look at them, one by one. 1) The SJC gave the legislature 180 days to "take such action as it may deem appropriate in light of this opinion." Doesn’t this mean that the court is open to civil-union legislation? It’s nonsense to presume that the six-month lag is an invitation to House Speaker Tom Finneran et al. to pass a civil-union bill. Marriage is a creature of the state that is heavily regulated by statute. There can be little doubt that the six months given to the legislature by the SJC was to give legislators an opportunity to make whatever changes to the marriage regulatory scheme it wishes before the gay-marriage requirement kicks in. For example, given the fact that lesbian and gay couples will be allowed to marry sometime in May 2004, the legislature might want to change child-custody laws and child-support laws. It might want to conform other statutes that treat married people in a particular manner. It might want to change the laws concerning blood tests and health tests. It might want to modify the divorce laws. And, most obviously, the legislature might want to amend the marriage statute to make it clear that it applies to same-sex or different-sex couples alike. 2) The court found that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." If the court was focused merely on marriage, why use the words "protections, benefits, and obligations"? It must be open to the idea of a parallel system providing the "protections, benefits, and obligations" of marriage, right? Wrong. When the court talks of "protections, benefits, and obligations," one must look at the context of the phrase to see what it means. It’s clear from Chief Justice Margaret Marshall’s opinion that "benefits" includes the non-economic, intangible benefits that come only with marriage. Indeed, Marshall wrote of the "tangible as well as intangible benefits [that] flow from marriage." She described the marital institution as "deeply personal" and "a highly public celebration" that is "an esteemed institution." She noted that it has "intimately personal significance." These are not terms that can be achieved by legislation awarding rights. Therefore, her opinion seems to leave no wiggle room at all for a separate-but-equal system of civil unions, which has no such pedigree. 3) Justice John Greaney did not sign on with the majority opinion, he merely concurred. And his concurring opinion talks about the "union" of gay couples, not marriage. Greaney concurred on equal-protection grounds, not on due-process grounds. (The majority opinion was based on both principles.) This makes it seem likely that he would be hostile to any attempt to approve a legislative gays-only marriage-lite law. Equal, after all, means "equal," not "substantially similar." 4) The ruling was narrow — just 4-3 — and therefore it does not hold as much weight as a unanimous decision or a 5-2 or 6-1 decision might. President Bush is our president thanks to a 5-4 ruling by the US Supreme Court. Enough said.
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