I wanted to mention an issue that has come up in some comments to a previous post, as well as elsewhere. There seems to be a view that the SJC in Goodridge declared all opposition to SSM to be irrational. Some have even implied the court's ruling means it believes the gender requirements of marriage were always arbitrary. I do not think this quite true.
First of all, just because the prohibition against SSM fails to pass the rational basis test today, does not mean it would have always failed to pass such a test in the past. In particular other changes in the law and in society can greatly affect whether a rationale for a statute continues to exist. As the classification here is one based on gender, it is certainly worthwhile to note that the role of gender in our law and society has gone through enormous changes to get to where we are today. The changes are so vast and widespread that I cannot go into every one. Instead I will give just one example of this phenomenon. Consider that it is only within the last hundred years that women were given the right to vote nationwide. Until that time all opposite-sex marriages had one vote per marriage, whereas a same-sex marriage would have had either two votes or no votes depending on the sex of the couple. The opposite-sex requirement thus would have furthered the goal of equal representation for all married couples.
Even looking at the situation today, though, the claim that the prohibition on SSM fails the rational basis test does not mean all opposition to SSM is irrational. The rational basis test states that all statutes must bear a reasonable relation to some permissible legislative objective. So there could be plenty of rational reasons for opposing SSM, but if those reasons are to achieve goals that are not considered permissible legislative objectives, the prohibition would still fail the test. In fact I think most of the opposition to SSM stems from such a view. Recently Ampersand highlighted a Pew Research poll which, among other things, asked people who opposed SSM their main reason for doing so. [And yes, I understand somebody could oppose it for more than one reason.] 73% of the respondents cited it was due to a belief that SSM (or homosexuality) was wrong, sinful, unnatural, etc. If one believes, as these people do, that SSM is a moral wrong in of itself, then it would be reasonable to oppose SSM in order to achieve the goal of preventing sin. There is some debate, though, as to whether preventing sin is itself a permissible legislative objective. Whether preserving "public morals" is a permissible legislative objective is quite a complicated issue that I hope to discuss further in a seperate post, but my point here is that the argument is then over whether such objectives are permissible and not over whether the prohibition would reasonably achieve those goals. [Some may argue that ethics based on religion are irrational in the sense of being based on faith and not reason. While I disagree with such a statement, it is worth noting that those who make such a claim are using "irrational" in the sense of "based on something other than reason" as opposed to the sense of "crazy" and thus I do not believe it is intended pejoratively.]
The SJC only briefly dealt with the immorality argument. In the introduction it cited Lawrence v. Texas itself quoting Planned Parenthood v. Casey stating, "Our obligation is to define the liberty of all, not to mandate our own moral code". In the body of the opinion the SJC just pointed to evidence that the legislature is opposed to discrimination based on sexual orientation. I find the court's handling of this issue a little unsatisfying. It is conceivable that one could be morally opposed to SSM, while having no moral opposition to private homosexual conduct--or vice-versa for that matter--and thus I believe the court should have given a more detailed analysis on the question of "morals" as permissible legislative objectives. [In particular, I think one could possibly distinguish Lawrence by arguing a distinction between public and private morals. As I said, it is a complicated subject.] In any case, though, the court may be excused somewhat for not dealing with this in more detail as it was not raised by the state, but only by amici.
This leads to another point concerning the "rational basis" test. The court was primarily concerned with those rationales proffered by the state. So when the court says that the state has failed to provide a rational basis to support the prohibition, it means just that. Somebody else could have a rational basis, but the state, given ample opportunity, failed to do so. Why would the state fail to offer what could be a rational basis? Did they just overlook some arguments? Well, that's certainly possible, but there are other reasons as well. They might have avoided some arguments out of political concerns. For example, they might have worried that the immorality argument above would offend not only homosexuals but a larger portion of the population. (I think there could have also been concerns of it being an impermissible objective). Other arguments may have been avoided out of more legal concerns. For example, I believe it is conceivable that legalizing SSM could impact how we view the role of gender in society. I do not believe that legislating gender roles is a permissible objective. Just bringing up such an argument, though, emphasizes the fact that the classification is based on gender, thus raising the risk that the court would use strict scrutiny. This might have been part of the reason the state avoided such an argument. Such a risk is also run by trying to rely on gender based stereotypes. The government is generally permitted under rational review to stereotype, that is to make generalizations. It is not clear, though, that they would be able to do so if the stereotypes were based on gender, and just raising the issue draws attention to the nature of the classification.
What of the rationales that the state did provide? Well, some dealt with impermissble objectives. For example, it is possible that banning SSM could lead to more procreation as people who would otherwise marry someone of the same sex could instead sleep with people of the opposite sex (whether in or out of marriage). I know neither how likely nor how desirable this would be, but more importantly, it is up to individuals to decide whether or not to procreate. Thus the goal of getting more people to procreate is an impermissible legislative objective. The court was also bothered by the question of why the state would allow other infertile couples to marry. A man who marries a sixty year old woman might otherwise have procreated with a younger fertile woman. It is true that under rational review, classifications do not have to be narrowly tailored to achieve the objective. But the court did not believe that the state really wanted to forbid all infertile couples from marriage; that it only failed to do so because of an inability to come up with a legislative solution. Based in part on an analysis of the marriage statutes, the court concluded that restricting marriage to fertile couples was not conceivably the legislative objective. As the court noted, not all rationales are conceivable.
Another rationale proffered by the state was the desire to provide the best environment for child rearing. Here the court did agree that children's interests were not only a permissible state interest, but "a paramount State policy". Unfortunately here the problem was with the rational relationship part of the test. Even if one believed that a child did better with a father and a mother, there is no reason to believe that banning SSM gives more children such families. As the court noted:
The department has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth's proffered goal of protecting the "optimal" child rearing unit.
Now I do not agree 100% with the analysis in the Goodridge decision. For example, whereas the court said there was no need to decide whether to apply heightened scrutiny (as it failed even rational review), I would have preferred that the court apply strict scrutiny on account of the gender based classifications. That being said, I think the court's analysis was fair and honest. I feel the state did fail to show that the prohibition was rationally related to a permissible legislative objective. More importantly, I think it is a mistake to say that the court implied all who oppose SSM are irrational or motivated solely by anti-gay animus. In fact, this is not the first time the court has struck down statutes under rational review. In footnote 20 the court gives ten Massachusetts cases dating back to 1909 where that has occurred. Those opinions do not brand every legislator who voted for those varied laws as a bigot.