Tuesday, November 18, 2003

As is the case with most big court cases Eugene Volokh has some insightful posts on the Massachusetts Supreme Court's decision here and here. Both of these posts are about slippery slopes. The first notes that as predicted by some conservatives at the time the ERA leads to gay marriage: Massachusetts passed an ERA for its constitution in 1976 and today's decision used that amendment as justification. The second post takes this idea to the next level: how today's decision could become a precedent for allowing polygamous and incestuous marriage.

As for my own take on the Massachusetts decision, I think it's profane policy-wise and I'm unsure about its legal merits. The profanity of course comes from its legitimation of a horrible perversion of God's gift of sexuality. I could write a lot about this, but I doubt it would change anybody's mind, so I'll move on to my legal critique. On the one hand, the Mass. constitution does outlaw discrimination based on sex and I generally support interpreting laws based on their plain meaning. On the other hand I also generally support interpreting laws according to the original intent of the people who passed them. The Massachusetts Equal Rights Amendment of 1976 was certainly not intended to legalize gay marriage, and in that sense the Mass. supreme has assumed a legislative (as opposed to judicial) role by changing the law.

Weighing plain meaning against original intent, in this instance I tentatively come down in favor of original intent. The plain meaning at the time of the passage of the Massachusetts ERA in 1976 was that exclusively heterosexual marriage was not unconstitutional sex discrimination, otherwise it would not have passed. The idea that voters might have to pass a constitutional amendment clarifying what they originally meant in order to fix a court's misinterpretation bothers me. Effectively a state constitution has gotten a very controversial amendment without any legislative vote or plebiscite.

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