THE MASSACHUSETTS SUPREME COURT has ruled that gay marriage is constitutionally protected. The link to the opinion is here, but I can’t get it to work, probably due to enormous traffic. Not having read it, I can’t offer much of a commentary except that I think it’s a plausible outcome for reasons spelled out in this article that I coauthored with Dave Kopel, and that if, as reported, Lawrence is mentioned a lot, it probably also fits nicely with the arguments made by Randy Barnett, here, about the libertarian underpinnings of that decision. Sorry — too busy to do more at the moment. More later.

UPDATE: This link seems to work. Just select “Opinions” and then click on “Goodridge v. Dept. of Health,” currently the second opinion on the list. Weirdly, the synopsis appears at the top of “Commonwealth v. Platt,” currently the top of the opinion list. Some sort of technical error, I imagine. I’m pasting the synopsis in the “extended entry” area below, in case it gets lost. Just click “more” to read it.

ANOTHER UPDATE: Virginia Postrel is concerned: ” All hell will now break out. I only hope that the movement toward gay marriage survives the ensuing backlash.”

I don’t think things will be quite that bad. But then, I’m an optimist. And also read her interesting comments on why opposition to gay rights has become a bigger deal in some quarters.

Unofficial Synopsis Prepared by the Reporter of Decisions

The Supreme Judicial Court held today that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.” The court stayed the entry of judgment for 180 days “to permit the Legislature to take such action as it may deem appropriate in light of this opinion.”

“Marriage is a vital social institution,” wrote Chief Justice Margaret H. Marshall for the majority of the Justices. “The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In turn it imposes weighty legal, financial, and social obligations.” The question before the court was “whether, consistent with the Massachusetts Constitution,” the Commonwealth could deny those protections, benefits, and obligations to two individuals of the same sex who wish to marry.

In ruling that the Commonwealth could not do so, the court observed that the Massachusetts Constitution “affirms the dignity and equality of all individuals,” and “forbids the creation of second-class citizens.” It reaches its conclusion, the court said, giving “full deference to the arguments made by the Commonwealth.” The Commonwealth, the court ruled, “has failed to identify any constitutionality adequate reason for denying civil marriage to same-sex couples.”

The court affirmed that it owes “great deference to the Legislature to decide social and policy issues.” Where, as here, the constitutionality of a law is challenged, it is the “traditional and settled role” of courts to decide the constitutional question. The “marriage ban” the court held, “works a deep and scarring hardship” on same-sex families “for no rational reason.” It prevents children of same-sex couples “from enjoying the immeasurable advantages that flow from the assurance of ‘a stable family structure in which children will be reared, educated, and socialized.”‘ “It cannot be rational under our laws,” the court held, “to penalize children by depriving them of State benefits” because of their parents’ sexual oreintation.

The court rejected the Commonwealth’s claim that the primary purpose of marriage was procreation. Rather, the history of the marriage laws in the Commonwealth demonstrates that “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of marriage.”

The court remarked that its decision “does not disturb the fundamental value of marriage in our society.” “That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit,” the court stated.

The opinion reformulates the common-law definition of civil marriage to mean “the voluntary union of two persons as spouses, to the exclusion of all others. Nothing that “civil marriage has long been termed a ‘civil right,”‘ the court concluded that “the right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropirate government restrictions in the interests of public health, safety, and welfare.”

Justices John M. Greaney, Roderick L. Ireland, and Judity A. Cowin joined in the court’s opinion. Justice Greaney also filed a separate concurring opinion.

Justices Francis X. Spina, Martha B. Sosman, and Robert J. Cordy each filed separate dissenting opinions.

Justice Greaney concurred “with the result reached by the court, the remedy ordered, and much of the reasoning in the court’s opinion,” but expressed the view that “the case is more directly resolved using traditional equal protection analysis.” He stated that to withhold “relief from the plaintiffs, who wish to marry, and are otherwise eligible to marry, on the ground that the couples are of the same gender, constitutes a categorical restriction of a fundamental right.” Moreover, Justice Greaney concluded that such a restriction is impermissible under art. 1 of the Massachusetts Declaration of Rights. In so doing, Justice Greaney did not rely on art. 1, as amended in 1976, because the voters’ intent in passing the amendment was clearly not to approve gay marriage, but he relied on well-established principles of equal protection that antedated the amendment.

Justice Cordy, with whom Justice Spina and Justice Sosman joined, dissented on the ground that the marriage statute, as historically interpreted to mean the union of one man and one woman, does not violate the Massachusetts Constitution because “the Legislature could rationally conclude that it furthers the legitimate State purpose of ensuring, promoting, and supporting an optimal social structure for the bearing and raising of children.” Justice Cordy stated that the court’s conclusions to the contrary are unsupportable in light of “the presumption of constitutional validity and significiant deference afforded to legislative enactments, and the ‘undesirability of the judiciary substituting its notion of correct policy for that of a popularly elected legislature’ responsible for making it.’ Further, Justice Cordy stated that “[w]hile ‘the Massachusetts Constitution protects matters of personal liberty against government intrusion at least as zealously and often more so than does the Federal Constitution,’ this case is not about government intrusions into matters of personal liberty,” but “about whether the State must endorse and support [the choices of same-sex couples] by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them.” Justice Cordy concluded that, although the plaintiffs had made a powerful case for the extension of the benefits and burdens of civil marriage to same-sex couples, the issue “is one deeply rooted in social policy” and ‘that decision must be made by the Legislature, not the court.”

Justice Spina, in a separately filed dissenting opinion, stated that “[W]hat is at stake in this case is not the unequal treat..nt of individuals or whether individuals rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts, pursuant to art. 30 of the Massachusetts Declaration of Rights.” He emphasized that the “power to regulate marriage lies with the Legislature, not with the judiciary.”

Justice Sosman, in a separately filed dissenting opinion, stated that “the issue is not whether the Legislature’s rationale behind [the statutory scheme being challenged] is persuasive to [the court],” but whether it is “rational” for the Legislature to “reserve judgment” on whether changing the definition of marriage “can be made at this time wihtout damaging the institution of marriage or adversely affecting the critical role it has played in our society.” She concluded that, “[a]bsent consensus on the issue (which obviously does not exist), or unanimity amongst scientists studying the issue (which also does not exist), or a more prolonged period of observation of this new family structure (which has not yet been possible), it is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that redefinition will not have unintended and undesirable social consequences.”