BY ADINA LEVINE
Professor Laurence Tribe discussed the context and future of Goodridge v. Department of Public Health as part of the Lunchtime Speaker Series for Staff on March 12, forecasting the statewide adoption of gay marriage by a vote. Tribe expected the governor to ask for an extension for the adoption of the court’s decision until November of 2006 to allow the electorate to decide this crucial issue.
“I believe the governor is going to ask the SJC [Massachusetts Supreme Judicial Counsel] at the end of March to consider whether to extend its stay from May 17 to November to give the people a chance to way in,” asserted Tribe. “A stay that lasts for years will be pretty unusual, but a six month stay was pretty unusual too.”
The Court in Goodridge had held that same sex unions cannot be discriminated against, but gave the legislature six months before enforcing its decision. The six months will expire on May 17, coincidentally the 50th anniversary of Brown v. Board of Education.
“Because the Court said that the decision would not become effective for 180 days, the legislature thought it meant that it gave them time to undermine the decision,” explained Tribe. “I think the SJC really meant to say ‘fix up the laws.’ That’s what they were supposed to be spending their time doing.”
The legislature’s response was an amendment to the constitution that would allow for the issuance of civil union licenses for same sex couples with all the rights and responsibilities of married couples but without the title of the marriage license.
“They were basically asking the Court ‘How do you like them apples?'” commented Tribe. “They had a genuine hope, I think, that as long as they said that a civil union would have all of the responsibilities of marriage, what more can anyone ask?”
However, Tribe believes that the proposed amendment, if presented to an electorate, will fail.
“From one perspective, it has something in it for both sides, namely if you want significant equality for gays and straights, it shall provide entirely the same benefits of rights and responsibilities, while withholding the esteemed institution of marriage,” postulated Tribe. “From another perspective it’s a dead sure loser from the word go. If you are really pressed to equality, it’s hard to vote for something that says there’s this great thing, it’s unique – and you can’t have it.”
The equivocal nature of the proposed amendment will make it impossible to pass, according to Tribe.
“It’s ideally written to get zero votes,” Tribe stated. “Which is why a number of legislators like it – so they can be on both sides, not an uncommon position for them to be at.”
Moreover, if it were passed, Tribe supposes that it could be struck down by the Supreme Court.
“There are things about it that make it very vulnerable under the Federal constitution,” asserted Tribe. “One thing is that it wears its discrimination right on its face.”
Tribe nevertheless thinks that the likelihood of it being reviewed by the Supreme Court is slim, given the recentness of the Lawrence v. Texas decision.
“There is only so much social and cultural change that a nation can take from an unrepresented body in so short a time,” Tribe opined.
To minimize the unrepresentiveness of the amendment, Tribe believes that an electorate adoption of a same-sex marriage policy will ultimately benefit the long term acceptance of the law.
“In the long run, the principles that the people think are embedded in the constitution will be least likely for backlash,” asserted Tribe. “Because the Court has only so much moral and political capital, it will be most accepted if they do it slowly.”
On the other hand, Tribe stresses that the Court has a responsibility to rise above general public opinion. For example, the court had an obligation to enforce interracial marriages even though they were strenuously opposed by the general public at the time.
“It is precisely the role of the court, because they don’t have to answer to the electorate next election, to do things which are unpopular,” he stated.
Ultimately, Tribe believes that same sex marriage will be accepted, either through the failure of the proposed amendment by a vote or a mere enforcing of the Court’s decision in Goodridge.
“If they do wait, same sex marriage will be enacted through the democratic process,” claimed Tribe. “If not, it will be enacted by four out of seven individuals. Even though some will say that this is legislation from the bench, at some point people will get used to it. I think we’ll just have to wait and see.”
Tribe himself finds it difficult to understand the opposition for same-sex marriages.
“It’s hard for me to understand what viscerally is wrong with same sex marriages,” he asserted. “My wife and I will be married 40 years, and there are a lot of things that threaten our marriage. But gay people getting married is not one of them.”
If anything, Tribe feels that current cultural phenomena present more of a threat to the institution of marriage than same sex marriage.
“If marriage is cheapened by anything, it’s Britney Spears going off and getting married every day, or when marriage is being given away as a prize in game shows,” Tribe commented. “But same sex couples who want marriage elevate it. What’s the big deal about the M word? Otherwise all the rights would have been enough. It’s basically saying that marriage is the greatest thing about society.”
In providing the context for Goodridge, Tribe discussed the history of Bowers v. Hardwick and Lawrence v. Texas as not just specifically laws against homosexuality or sodomy, but general threats to privacies of individuals.
“The only way to afford human dignity for people regardless of sexual orientation is to say that the government has no power to ban intimate sexual activity of consenting adults in private,” explained Tribe. In this way, the advocacy for gay marriage and against anti-sodomy laws is “what is the state doing in your bedroom?”