Federal Appeal

Sunstein, Cass R.
December 2003
New Republic;12/22/2003, Vol. 229 Issue 25, p21
In its extraordinary decision in Goodridge v. Department of Public Health last month, the Massachusetts Supreme Judicial Court ruled that a prohibition on same-sex marriage violates the Massachusetts constitution. While the court drew some support from federal precedents, its decision was plainly grounded in previous interpretations of the state constitution and its distinctive guarantees of equality and liberty. The U.S. Constitution was not involved; it was state--not federal--law that formed the basis for this ruling. We should therefore celebrate Goodridge, not only because it ends a form of second-class citizenship for gays and lesbians but also because it exemplifies the federal system at its best. The Massachusetts court's most important conclusion in Goodridge was that the state had failed to produce a "rational basis" for its refusal to allow same-sex couples to marry. And, to be sure, it would be preferable if gay marriage had been ratified by the Massachusetts legislature rather than the state supreme court. The reasonableness of the Massachusetts court's decision does not, however, mean the U.S. Supreme Court should follow suit now or in the near future. Quite the contrary. At the national level, judges ought to show caution in ruling on gay rights. An attempt by the U.S. Supreme Court to settle the same-sex marriage debate at this time would be disastrous, undoubtedly causing a heated public backlash and endangering the cause of gay rights itself. In any case, Congress foresaw the ramifications of a Goodridge-like ruling in 1997 when it passed the federal Defense of Marriage Act, which expressly authorizes states to refuse to recognize same-sex marriages even if they are valid in the state where they were performed.


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