Tuesday, November 18, 2003

Hullo, Frisco, Boston! 

Virginia Postrel has this to say about the Mass. SJC decision:

All hell will now break out. I only hope that the movement toward gay marriage survives the ensuing backlash.
This was the reason why, despite my support generally of gay marriage, I did not think that the Mass. SJC should have struck down the same sex ban. This is a highly controversial issue, and those who are on the fence will not be happy that this was decided for them by a few judges.

Given that the decision did not grant the couple a marriage license, but instead assigned the task of settling the situation to the legislature, there are a few ways this could go:

--Outright gay marriage Most of the Democrats in the state legislature have their seats locked up, but this might be one issue that could put their jobs in jeopardy. Also, having a solid majority for the longest time means the Democrats have not had to actually do anything, so it's unlikely that they will do something controversial now.

--Civil union I think this is the most likely. The legislators can say the court forced their hand into doing it to modertaes, and still be protected from the left flank.

--Nothing The legislature could simply refuse to comply, either by not considering a solution, or having it voted down. And either way, they might not be able to muster a supermajority to bypass a veto by Governor Romney, a Mormon from Utah.

--Referendum to change the constitution to define marriage as a union between a man and a woman This was tried last year, but the legislature rejected it. I don't say how they can reject it again, but the court might force the legislature to settle way before this can get on the ballot.

UPDATE: Robert Alt clarifies what it means for the court to "order" the legislature:

The Court neither remanded the case, nor "ordered" the legislature to do anything. Rather, the SCOMA stayed the entry of judgment for 180 days "to permit the legislature to take such action as it may deem appropriate in light of this opinion." By granting the stay, the Court essentially recognized that it had created a substantial rupture with current law by redefining the term civil marriage, and therefore prevented the decision from taking effect instantaneously so that the legislature may seek to formally modify the law or implementing legislation to correspond with the legislation. However, the court did not remand or order the legislature to do anything. Indeed, based on the plain language of the court's opinion, the legislature could use the time to enact legislation that reaffirms that marriage is between one man and one woman, or could seek to modify the Constitution to prevent the outcome dictated by the SCOMA.
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