The Magazine

Finally Some Rational Judges

New York's top court upholds marriage.

Jul 24, 2006, Vol. 11, No. 42 • By DAVID M. WAGNER
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Yes, it "does confer advantages on the basis of sexual preference"--but that matters little when "rational basis" is the applicable test. In its 1996 decision in Romer v. Evans--striking down an anti-gay rights amendment to the Colorado constitution--the U.S. Supreme Court declined to hold that "strict scrutiny" was the right test. The plaintiffs won anyway, because the law they had challenged was, in the Court's view, explicable only by irrational bigotry, and was therefore unconstitutional without further ado. This doctrine led not only to Romer, but also to Lawrence v. Texas (striking down sodomy laws) and, in Massachusetts, Goodridge.

In Hernandez, however, the "no rational basis" juggernaut screeched to a halt. The New York court did not quarrel with Romer or Lawrence, but it held that marriage is different. Maybe Colorado's Amend ment 2 was based on irrational "animus"; maybe Texas's sodomy law was too. But privileging the exclusive male-female relationship because of its role in child rearing?

Meanwhile, in Massachusetts, a voter initiative that would amend the state constitution to ban same-sex marriage survived scrutiny by the Massachusetts high court--they of the Goodridge decision. There is a state rule against initiatives that reverse the outcomes of decided cases. But changing the substantive law, the court held, is not the same as reversing a judgment rendered under the previous law. So the measure can appear on the 2008 ballot.

However, two justices, John M. Greaney and Roderick L. Ireland, pretty openly announced that they look forward to striking down the initiative even if it becomes part of the Massachusetts constitution. For a juris prudential parallel, imagine Chief Justice Roger Brooke Taney living on into Reconstruction and striking down the Thirteenth Amendment because it conflicts with his opinion in Dred Scott.

Greaney reasoned that the initiative cannot have a rational basis, because his court already decided in Goodridge that there is no rational basis for not allowing gay marriage. "There is," he continued, "no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by Art. 1 of the Massachusetts Declaration of Rights."

No "precedent discussing, or deciding," that is, whether the Massachusetts court can use one part of the Massachusetts Constitution to strike down another. No doubt there isn't: Some elements of the rule of law are too basic to need "precedent." Or at least they were before we entered the age of postmodern law, in which two Massachusetts justices can declare seriously that a rule defining marriage as one-man-one-woman would look "starkly out of place in the Adams Constitution."

John Adams might, for once, feel more at home in New York.

David M. Wagner is associate professor of law at Regent University, and blogs at