Breaking down barriers: the Goodridge decision and modern civil rights.

• Author: Greaney, John M.
• Position: Symposium: State High Court Judges on Making Their Hardest Decisions

Thank you for having me. I did not realize that the instructions were to talk about our hardest case, because I was led to believe that you wanted me to talk about our decision in Goodridge, (1) the same-sex marriage case, and then if I did not talk about that, I would be led from this room by the sheriff pretty promptly. Goodridge was neither my hardest case, nor was it my easiest, but I will talk about the case nonetheless.

Before I get to Goodridge, however, let me say that the Massachusetts Constitution is a document that my court protects, and considers to be a constitutional template that must be interpreted and applied to meet with changing social and economic conditions.

Our justices do not for the most part subscribe to an originalist point of view, and there's good reason for that. First of all, the Massachusetts Constitution was drafted by John Adams as its principal draftsperson in 1780, and precedes the United States Constitution by seven years. It is the oldest extant constitution in the western hemisphere. (2) And the decisions of the United States Supreme Court, as you well know, establish a federal standard, a kind of a minimum basis for what occurs throughout the whole country. This creates a floor, not a ceiling, leaving the states and the state courts to fashion other rules--other constitutional rules under their state constitutions. And that's very important on the part of the United States Supreme Court, because it recognizes principles of federalism, and the import of the Tenth Amendment that allocates a certain reservoir of power to the states. I am sure this is familiar to the students who have studied constitutional law.

So, with that in mind, let me turn and walk you through what occurred in the Goodridge case, which was decided a little over five years ago. (3) It seems more recent than that, but the decision was made five years ago.

The facts are fairly straightforward. We had seven same-sex couples who had been living in committed relationships for many years raising children--some biological children, some adopted children--who challenged the marriage laws on the basis that the laws violated certain provisions of our state constitution. (4) The defendant was the Department of Public Health who administers those laws.

The court wrote five opinions: two in support of same-sex marriage and three in dissent. The decision I joined, which was written by the chief justice to create a four-judge majority, analyzed the problem this way:

We recognized first that the marriage laws--and we are talking here about secular marriage, not, obviously, about religious marriage--were licensing statutes that perform a gate-keeper function ascertaining who meets the requirements necessary to receive a marriage certificate. (5)

We realized further that we were dealing with the police power of the state when we talk about whether we could alter the arrangement that these statutes created. (6)

And we further pointed out the countless benefits--in the hundreds, too numerous to mention--flowing from the fact that a person is married, so that the plaintiffs were being shut off from a number of state benefits and also a number of federal benefits. (7)

With that in mind, the decision that four of us signed onto began with what is the usual constitutional analysis: the nature of the right at issue. And then if a classification is involved, what is the classification? And what kind of review are you going to apply to...