Divorcing marriage from procreation.

• Author: Greene, Jamal

Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).

Public debate about same-sex marriage has spectacularly intensified in the wake of the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. (1) But amid the twisted faces, shouts, and murmurs surrounding that decision, a bit of old-fashioned common-lawmaking has been lost. Some have criticized the Goodridge court for its apparently result-oriented approach to the question of whether, consistent with the Massachusetts Constitution, the commonwealth may deny marriage licenses to same-sex couples. (2) Others have defended the decision, both on the court's own rational basis terms and on other grounds, including sex discrimination and substantive due process. (3) This Comment contends that both sides are partly right.

I join those commentators who find Goodridge's reasoning flawed but its outcome correct. (4) Where I part ways is in recognizing the vital importance but untapped potential of the Supreme Court's decision in Turner v. Safley. (5) The Turner Court held unconstitutional a Missouri prison regulation denying inmates the right to marry except for "compelling reasons." (6) It is a familiar case, frequently invoked in legal arguments over same-sex marriage to support the proposition that marriage is a fundamental right under our federal constitutional jurisprudence. (7) Too often, however, these arguments miss the totality of what Turner tells us about exactly why marriage is a fundamental right. Because the Turner Court struck down a marriage ban that applied to a population with no legal right to procreate and that provided an exception for pregnancy, the decision undermines any claim that marriage is fundamental because of an inexorable connection to procreation.

Part I of this Comment scrutinizes and ultimately rejects the Goodridge court's rational basis analysis. Part II explores the road not taken in Goodridge--the fundamental rights approach of cases such as Loving v. Virginia, (8) Zablocki v. Redhail, (9) and Turner. I argue that for marriage to comport with our fundamental rights jurisprudence, the source of its constitutional definition must be constitutional common law, not individual state statutes. Part III rediscovers Turner as a source of that constitutional definition, concluding that the case is irreconcilable with the view that the possibility of procreation is a necessary affluent of marriage's fundamentality. With Bowers v. Hardwick (10) officially dead, Turner insists that same-sex marriage bans answer to strict, and therefore fatal, scrutiny.

I

Although the Goodridge court decided the case under the Massachusetts Constitution, the reasoning invoked under that document parallels that of its federal counterpart: Each jurisprudence applies heightened scrutiny to statutes that draw a suspect classification or implicate a fundamental right and applies rational basis review to all other statutes. (11) Because the Goodridge court determined that the Massachusetts marriage-licensing statute did not satisfy rational basis review, it did not have to reach the question of whether and how to apply heightened scrutiny. (12) In her rational basis review, Chief Justice Marshall considered three asserted rationales for the commonwealth's prohibition on same-sex marriage: first, that it "provid[es] a favorable setting for procreation"; second, that it "ensur[es] the optimal setting for child rearing"; and third, that it "preserv[es] scarce State and private financial resources." (13) The ban on same-sex marriage need be rationally related to only one of these goals to survive review under the deferential rational basis standard.

We need go no further than the first. Marshall rehearsed familiar arguments for why, if a stable procreative setting is the goal, same-sex marriage bans are both over- and underinclusive. Many same-sex couples are permitted and even encouraged to adopt or conceive through artificial insemination and subsequently raise children, Marshall argued, while many opposite-sex couples freely marry without any desire or even ability to procreate. (14) Attempting to ground the right to marry in procreation thus smells suspiciously post hoc. But rational basis review is hardly so searching. Consider an analogy: Are laws that restrict unemployment benefits to people who lose their jobs rationally related to the goal of ensuring that people who are laid off have soft landings? Like traditional marriage laws, unemployment benefits are both over- and underinclusive. Many individuals who receive unemployment benefits do not need them, while many who are employed desperately need a financial cushion. Yet unemployment benefits programs would easily survive rational basis review, which permits the use of the roughest of proxies. Just as the state may draw the line at "unemployment" in a social welfare program, it may draw the line at "opposite sex" in the enjoyment of the marriage benefits that it confers as a civil entitlement. (15) If same-sex marriage bans are to fail, they must fail under heightened scrutiny. (16)

II

Those in sympathy with the Goodridge result might instead rely on a far stronger federal constitutional argument. (17) Loving v. Virginia, which held Virginia's antimiscegenation laws unconstitutional, was decided on two independent and equally adequate grounds. (18) The first...