I'm convinced. I've read GLAD's brief and parts of the Civl Right's brief and Civil Union's brief. The first gives a detailed argument for why the civil union bill is unconstitutional. The second focuses on the problems of stigmatizing a group through a "separate but equal" institution. The third focuses on how in Vermont civil unions have been shown not to be equal to marriage. These three briefs have convinced me.
Let me reiterate where I stood before reading the briefs. I fully concurred with the court's opinion in Goodridge. (Even if I hadn't, I would still have recognized the decision as binding precedent in Massachusetts.) I fully supported marriage as opposed to civil unions. I thought the decision was clear that same-sex couples could not be denied access to the institution of marriage. I was only uncertain as to whether the decision would allow for the civil union bill if at allowed access to marriage, just with a different name. That is could matters of nomenclature affect constitutionality? The briefs have convinced me (1) the civil union bill is not just a matter of nomenclature, but would deny access to the "institution" of marriage and (2) nomenclature itself can have real consequences thus affecting constitutionality.
(1) I should have realized this even before reading the briefs. The bill itself states that its purpose is "to give same-sex couples the opportunity to obtain the legal protections, benefits, rights and responsibilities associated with civil marriage, while preserving the traditional, historic nature and meaning of the institution of civil marriage." Thus it is clearly (and purposefully) denying same-sex couples access to the institution of marriage which the Goodridge decision prohibits. That alone would make the bill unconstitutional. What if instead, though, the Senate had proposed using different words to the effect that civil unions were just another name for marriages of same-sex couples? That is same institution, different name? It is in this area that the briefs were particularly persuasive...
(2) There were two arguments I found compelling in this regard.
(a) The first, elaborated upon in the brief on behalf of John Lewis and other civil rights leaders, was that the mere use of a separate name could have a dramatic stigmatic effect on same-sex couples. The references to Harlan's dissent in Plessy and his ultimate vindication in the landmark decision of Brown were particularly telling. The civil union bill, like the case of segregated trains in Plessy, sought to defer to the traditions and mores of the community even though those views considered some to be second-class citizens. There is a slight difference, that in Plessy it was the citizens considered to be inferior, in this case it is the marriages that are considered inferior. The detrimental effect is the same, though. How must it feel to be told that your marriage, while tolerated, does not have the same worth as others? Consider also, the case of US v. Virginia where the state tried to exclude women from VMI, but allowed them to attend a new school just for women. It was not so much that the women were considered inferior, but that their education and military training was not considered valuable. The court noted that the women's school did not have the same history and prestige as VMI. It is worth noting that in the VMI case a justification could have been given for separate schools, but the very fact that it was only done in response to an attempt to admit women to VMI was part of the evidence that the rationale was mere pretext for continuing an exclusion previously deemed impermissible. That seems to be quite on point here. The very fact that civil unions are only being offered now goes to show the purpose is to continue to deny same-sex couples marriage (as opposed to an attempt to help same-sex couples).
(b) The second, elaborated upon in the brief on behalf of HRC and other LGBT groups, was that the experience from Vermont shows that civil unions are treated differently than marriages. Before reading the brief I had two questions in my mind about the validity of this argument. Does Massachusetts have any obligation to try to affect how its citizens are treated by sister states or the federal government? Isn't there a chance that a same-sex marriage would likewise not be respected by these other governments? The brief dealt squarely with my questions and convinced me that the answers are: Yes. Yes, but it doesn't matter. Massachusetts has an obligation to treat its citizens equally. It can't control what other jurisdictions do, but by using civil unions instead of marriage it is, at the least, causing extra burdens and obstacles for its citizens when they travel abroad. While some states have mini-DOMA's, others do not and those that do may get rid of them. While principles of comity and choice-of-law lead to believing civil unions should be respected elsewhere (and in some cases have been), the fact that it intentionally does not use the word "marriage" has given courts in CT and GA an excuse to not recognize them. Pointedly Connecticut does not have a DOMA so the marriage almost certainly would have been recognized except for this loophole. Likewise, while there is caselaw to support that the federal government must defer to the states in the status of family relationships, the issue can be avoided until Massachusetts makes it clear that a same-sex marriage has the identical status as all other marriages it registers.
What about briefs supporting civil unions? I have yet to find any. There were 17 briefs submitted to the SJC. Seven of them, including five coordinated by GLAD, were filed on behalf of organizations and prominent individuals arguing that the bill would be unconstitutional. [I should point out that the SJC is not ruling on the constitutionality of the bill. It is merely giving the legal opinions of the justices and is not binding precedent, unlike the decision in Goodridge which is.] Seven briefs were filed on behalf of individuals acting pro se. The Globe has a story on one guy who submitted a brief. From what I can tell at least two of the individuals are likely in same-sex relationships and possibly giving personal accounts of what it would mean to them to be able to marry. Finally three of the briefs were on behalf of organizations opposed to SSM (and civil unions). I have some information on these briefs from two Globe artilces. One is a two-page brief arguing Goodridge should be thrown out. Another argues that the legislature should be able to explain it's rational basis for denying SSM and that the court had no jurisdiction over marriage. The final one derides the court for its "radical departure from well-established methods of constitutional interpretation" and asks it to not issue an advisory opinion. As the advisory opinion is not an opportunity for the court to relitigate a case it has already decided I doubt these briefs will carry much weight.
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