What Do Independent Judges Do?
In this section, we consider how some specific cases decided by independent judges have helped advance equal rights for gay, lesbian, bisexual and transgender Americans. Goodridge v. Department of Public Health ( Massachusetts, 2003) The Massachusetts Supreme Judicial Court ruled that Massachusetts law could not prohibit same-sex couples from marrying. It held that excluding same-sex couples from civil marriage violated state constitutional principles of respect for individual autonomy, due process and equality under law. The plaintiffs, seven same-sex couples, challenged the state marriage statute (which had been construed to define marriage as being between a man and a woman only) on both equal protection and due process grounds. The court found that the marriage ban violated both equal protection and due process requirements because there was no rational basis for the ban. Massachusetts argued that prohibiting marriage for same-sex couples (1) provided a “favorable setting for procreation”; (2) ensured the optimal setting for child-rearing; and (3) preserved scarce state and private financial resources. The court rejected each argument in turn, finding there was no rational basis (the most deferential standard of constitutional review) for any of these assertions. It noted that state laws do not privilege procreative heterosexual intercourse; fertility is not a condition of marriage, and infertility is not grounds for divorce. There is no requirement that married couples consummate their marriage. People who were past their reproductive years, even people on their deathbeds, may marry. The court found that marriage is about the exclusive and permanent commitment of marriage partners, not the production of children. The court further found no rational relationship between the ban on marriage and the asserted goal of ensuring the optimal setting for child-rearing. There was no evidence (and Massachusetts did not dispute this) that same-sex parents could not be excellent parents. Restricting marriage to opposite-sex couples did nothing to protect the welfare of children. Finally, the court rejected the argument that limiting marriage to opposite-sex couples conserves scarce financial resources. The argument was based on the theory that same-sex couples are more financially independent than opposite-sex couples. The court dismissed this as a “conclusory generalization” and pointed out that many same-sex couples have children and other dependents (e.g. aged parents). Also, Massachusetts marriage laws do not condition receipt of the financial benefits of marriage on a showing of financial dependence. The court rejected the assertion that its decision did anything to change the societal value of marriage. It pointed out that same-sex couples do not seek to abolish or undermine marriage; in fact, extending marriage to same-sex couples reinforced the centrality of marriage. The court also rejected the argument that the definition of marriage should be left to the legislature, not the courts. It pointed out that it is up to the courts to decide whether legislation is constitutional.
The court also observed that it was disingenuous to argue that recognizing marriage equality was a radical break with the traditional definition of marriage. It explained that the definition of marriage had changed over the years. In the past, interracial marriage was prohibited — until courts undid that injustice. In the past, a woman’s legal identity was consumed by her husband upon marriage; this too was changed by the courts (along with the legislature). Each time that there were changes — when anti-miscegenation laws were rejected, when married women received equal rights, when no-fault divorce was introduced — there were predictions that the institution of marriage was doomed. Of course, it has endured, as the court predicted it would continue to endure, despite the current predictions that marriage by same-sex couples will undermine the institution.
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