Saturday, December 17, 2005

Margaret's Choice-A Fantasy

Margaret H. Marshall always had mixed feelings about being a judge. She loved the law, the dense interplay of statutes, precedent and values tightly argued. She could pick up each thread and follow each detail of any brief. She could usually have done a better job, so she would fill in the blanks of the lesser skilled advocates, when they were arguing a position she supported, that is.

She had made it to the top of the heap in Massachusetts, from Harvard General Counsel, to associate and now as Chief Justice of the Supreme Judicial Court of the state. There was a downside to her position, that she could take no active part in politics. Margaret Marshall, not being active in politics, who would have believed it.

Her earliest memories from her native land where of politics; hard fought, life changing, revolutionary politics. All through school and then as president of the National Union of South African Students, she led anti-apartheid activities and protests amid threatening government opposition. It defined who she was and was to be.

In spite of variations among individuals, it usually turned out that the Right were the ones with the billy clubs who wanted to keep what they had, and the Left was trying to give the blacks, or the workers, or women an even break. She felt no guilt about being called a Liberal.

She loved her adopted country, and her great life. Married to Anthony Lewis, an older retired columnist of the New York Times and surrounded by the elite of Harvard, she was both challenged and revered. Having no children of her own, her concern for the oppressed seemed especially intense, as if infused with a maternal desire to take care of them.

Her reverence for the American legal system, as close as she came to a religious belief was shattered after the election of 2000. She watched the Republican goons close down the ballot counting in West Palm beach. She watched as each spokesman recited their talking points, repeating nonsense so often it drowned out real discussion. She carefully studied the legal arguments in each stage of litigation, up to the Florida Supreme Court, praying that justice would prevail over demagoguery.

This was why she entered law. It was politics of the mind. No violence, no pickets, no strikes; just the brightest people using the weapons of precedent, statutes and logic. She noted the words of the Florida constitution, “Notwithstanding any law or regulation, the manifest will of the voters will be the ultimate outcome to be achieved” There it was in the foundational charter of the state. All of the stupid errors because of defective equipment and botched butterfly ballots will be overruled, and the Democratic majority will prevail”

When the Bush people requested an emergency injunction from the Federal Supreme Court, none of the commentators took it seriously. How could they, this was a state issue. And if there were to be a contested slate, if the state courts and the Governor sent different electoral slates to the House of Representatives, the Constitution, which is almost always vague, gives specific rules for deciding which to accept.

And then that Friday, out of the blue, the word came down, The Supreme Court had enjoined the state of Florida from continuing counting the ballots. It was over. They scheduled hearings for Monday, but it would be too late. It had taken a massive effort to mobilize this recount project, and once dismantled it could not be restored in time. This was not a delay, it was a death knell.

She didn't know whether to laugh or to cry when she read the final decision. Scalia could make shit look like Foie Gras, but he couldn't get rid of the smell. She read Justice Stevens' summation, “We may never know who won this election but we know who lost, every judge in every courtroom in every state where justice is pursued.”

And then came 9-11. A few weeks afterward the New York Times editorialized that President Bush has achieved a new gravitas. Not to Margaret. She recognized the same arrogance of power, the same mixture of false patriotism mixed with religious fervor, the same threat against dissent that she had seen in South Africa as a child. But now she could do something about it. She could command a majority of her court that would send a message to the Republicans that they could not ignore.

Prohibition of Gay Marriage was the final stand of bigotry in America, and she had the ability abolish it in her state.. While others would have avoided this issue, she welcomed it. When it landed in her court in March, she took the lead in lining up support. The final decision had been written and she had the draft on her desk. Her husband, the Harvard crowd, all her friends would be proud.

She didn't care a bit about the anger from the right wing bigots who would attack her. But Martha's reaction still got to her. Martha Sosman had been her buddy from even before she got on the court. There was a bond, almost like high school best friends that belied their different backgrounds. There were a few cases where they were on opposite sides, but no biggies, just a jurisdictional dispute and a case of paternal rights. They actually gained more mutual respect for each other from them.

Martha had written her dissent on the Gay Marriage case with two justices concurring, but Margaret had her majority of four. They were solidly behind her decision and it would become law. And to underline her determination, the order for compliance would not be like Earl Warren's desegregation decision with compliance ordered, “In all deliberate speed.” but to be implemented in six months. The sound of her gavel was to be heard throughout the state and echo across the country. The legislators, the religious nuts, and the people in the state just better get used to it.

Now, the Martha that stood before her in her office was not the woman she knew. With a cold intensity she spoke, “Margaret, you are about to make a mistake, that you just may regret for the rest of your life.” “Now come on,” Margaret laughed, “What could happen, I'm going to get impeached.” “No, not a thing will happen to you, you will be the hero of Harvard Square, you will be written up in Harpers, and Spielberg may even make a movie of your life. You will be just fine, it's the country that will suffer.”

Margaret wasn't used to this. She was prepared for anger from the rabble, from the right wing media, but not for this. She was stunned as Martha, with a fire she had never seen, went on, “Your friends may all think you're a hero, but they don't make a majority, they don't elect congress, or presidents. Your friends are already hated by the people out there, and you are going to make them despised. Your husband, Anthony gets the same one vote with his Pulitzer prize as some poor slob with an eighth grade education.

They don't have much, those people who hate their jobs and struggle to get by. But they have a dream, from when they are little kids. They can have this identity, an identity as a husband, as a wife, something that transforms raw sex into something holy. It's all in that marriage ceremony. They are now Husband and Wife, all they have to do is say some wows and they belong. It's all pretty fragile with them, and you are going to break it right over their heads.

Martha stopped. She realized she had gone too far. Margaret composed herself and said, “But all that you say, all the good, all the comfort from being married, why can't everyone have it. Thats all I'm doing, giving this good thing to everybody.”

“It's just not going to work,” Martha responded. “Marriage is this magic device that turns passion into love, but it also does something else, it restricts and channels this passion. You can't touch Mommy in certain places, same with little sister, and something else that you learn, the rules for those like you, with the same genitals is different than the rules for the other sex. Forget the crap that the bible says sodomy is a sin. It's a sin because it breaks the rules. Not your rules, not my rules, but the rules of most of the poor souls out there. They have followed them, whether they like it or not. You will show them that they are all narrow minded bigots. They can't provide a steady living for their family,and if their kids get sick they may not even be able to take care of them. And you are destroying what little they have.”

Martha was exhausted, so now calmly she continued, “And they will show their appreciation. Those Right wing bastards will pounce on this and never let up, they will have permanent residence in the White House. They can take away their health care, make sure the rich get richer and the poor better damn well have their kids, whether they like it or not. You just don't know what you are doing. You just don't know...” With that, she turned and walked out the door.

Margaret tried to continue her work, but it was impossible. She was flushed, shaken. She told her secretary she had a headache and went home. She tried to talk to her husband about the conversation, but she couldn't. This was her best friend challenging her most basic beliefs. There was no one to talk to.

That night sleep would not come. Martha's words kept running through her head. Her answers to her, her logic, her well honed jurisprudence seemed hollow, like she was missing something. When revelry finally melted into dreams, there was no peace. She saw the crowds, shouting in unison, the signs, “Down with activist judges.” She saw the news bulletin on Fox News, the announcer with barely controlled glee saying, “The votes for those who came out to support the anti-Gay marriage amendments made the difference. George W. Bush has been re-elected President.”

Then there was this wood paneled room, Anton Scalia, no longer only with two buddies, now there were five, all in their robes with the confidence of absolute power. They had won the ultimate prize. The highest court of the land will be theirs for decades. It will be their God who will now be the final authority. Lives of the unborn, unwanted by parents, will be under His protection, as will the the aged who dearly want to be rid of their mortal coil. Tie their hands and let them await God's will, shall be the law of the land. The malformed, unloved and unwanted will be under Gods protection, right up to the time of birth, when neither God nor state will be any longer interested.

As Margaret watched, trapped in a dream more real than any reality, she heard a scream from somewhere, a terrible swelling moaning cry that finally broke through. Anthony had been shaking her for what seemed like minutes. Her heart pounding, she opened her eyes. It had all been a dream, but it seemed so real. She was a different person than the one who went to sleep only hours before.

The next day she called a conference of the court and said she had reconsidered her position on the case before them and required a postponement. In the next few weeks, she explained to each of the justices, with thoughtfulness and tact, that although she felt gay marriage is something to be desired, it should not be a decision of the judiciary, but rather of the elected representatives of the people.

Martha was the last person she spoke to. They tried to be professional, but couldn't. The tension was resolved in tears, followed by shared laughter, a release neither of them had known for many decades. The final opinion, written by the two of them, and unanimously endorsed by the court,was something new in the annals of law. The ideal of expansion of the right to marriage to all was endorsed, but so was the appreciation of what this would mean. The value, the vital function, of tradition was articulated outside of the idiom of religious absolutism. There was an affirmation of the proper role of the court, and what should be left for other branches of government, and other less definable processes of societal change.

Although scholarly and tightly written, the decision was widely and extensively quoted in the press. The reasoning made intuitive sense, and for once the people of the country felt connected to those who made their laws. Shortly afterwards, and little noticed, a web site was shut down. had simply stopped getting hits.

There were no referendums on Gay Marriage in November of 2004, so the turnout in key states was rather low. Perhaps that is why President Bush lost by 37 electoral votes.

Bio of Marshall

Actual Decision

Saturday, December 23, 1995

Transcript of Martha Sossman's Dissent

I am including this dissent from the Massachusetts Gay Marriage decision, (Hillary GOODRIDGE & others etc.) , for one important reason, the argument over this issue has been distorted by advocates on both sides. It is rare to find an argument against Gay Marriage that is written from other than a Biblical or Right Wing conservative perspective. It would be easy if liberals could dismiss the three votes against this ruling as representing right wing fundimentalists, but it would fly in the face of the facts. Sosman had been the head of the State Planned Parenthood for eight years, and is as far from the radical right as one can be.

This dissent, while specific to the question of judicial imposition of this policy, addresses many of the general elements of the issue. I have attempted, crudely I admit, to color code this with the most important parts in red, and the lessor parts in blue.

The link to the full decision is at the end of the article "Margaret's Choice" SOSMAN, Martha Justice (dissenting, with whom Spina and Cordy, JJ., join).

In applying the rational basis test to any challenged statutory scheme, the issue is not whether the Legislature's rationale behind that scheme is persuasive to us, but only whether it satisfies a minimal threshold of rationality. Today, rather than apply that test, the court announces that, because it is persuaded that there are no differences between same-sex and opposite-sex couples, the Legislature has no rational basis for treating them differently with respect to the granting of marriage licenses. [FN1] Reduced to its essence, the court's opinion concludes that, because same-sex couples are now raising children, and withholding the benefits of civil marriage from their union makes it harder for them to raise those children, the State must therefore provide the benefits of civil marriage to same-sex couples just as it does to opposite-sex couples. Of course, many people are raising children outside the confines of traditional marriage, and, by definition, those children are being deprived of the various benefits that would flow if they were being raised in a household with married parents. That does not mean that the Legislature must accord the full benefits of marital status on every household raising children. Rather, the Legislature need only have some rational basis for concluding that, at present, those alternate family structures have not yet been conclusively shown to be the equivalent of the marital family structure that has established itself as a successful one over a period of centuries. People are of course at liberty to raise their children in various family structures, as long as they are not literally harming their children by doing so. See Blixt v. Blixt, 437 Mass. 649, 668-670 (2002) (Sosman, J., dissenting), cert. denied, 537 U.S. 1189 (2003). That does not mean that the State is required to provide identical forms of encouragement, endorsement, and support to all of the infinite variety of household structures that a free society permits.

Based on our own philosophy of child rearing, and on our observations of the children being raised by same-sex couples to whom we are personally close, we may be of the view that what matters to children is not the gender, or sexual orientation, or even the number of the adults who raise them, but rather whether those adults provide the children with a nurturing, stable, safe, consistent, and supportive environment in which to mature. Same-sex couples can provide their children with the requisite nurturing, stable, safe, consistent, and supportive environment in which to mature, just as opposite-sex couples do. It is therefore understandable that the court might view the traditional definition of marriage as an unnecessary anachronism, rooted in historical prejudices that modern society has in large measure rejected and biological limitations that modern science has overcome.

It is not, however, our assessment that matters. Conspicuously absent from the court's opinion today is any acknowledgment that the attempts at scientific study of the ramifications of raising children in same-sex couple households are themselves in their infancy and have so far produced inconclusive and conflicting results. Notwithstanding our belief that gender and sexual orientation of parents should not matter to the success of the child rearing venture, studies to date reveal that there are still some observable differences between children raised by opposite-sex couples and children raised by same-sex couples. See post at--(Cordy, J., dissenting). Interpretation of the data gathered by those studies then becomes clouded by the personal and political beliefs of the investigators, both as to whether the differences identified are positive or negative, and as to the untested explanations of what might account for those differences. (This is hardly the first time in history that the ostensible steel of the scientific method has melted and buckled under the intense heat of political and religious passions.) Even in the absence of bias or political agenda behind the various studies of children raised by same-sex couples, the most neutral and strict application of scientific principles to this field would be constrained by the limited period of observation that has been available. Gay and lesbian couples living together openly, and official recognition of them as their children's sole parents, comprise a very recent phenomenon, and the recency of that phenomenon has not yet permitted any study of how those children fare as adults and at best minimal study of how they fare during their adolescent years. The Legislature can rationally view the state of the scientific evidence as unsettled on the critical question it now faces: Are families headed by same- sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes? Our belief that children raised by same-sex couples should fare the same as children raised in traditional families is just that: a passionately held but utterly untested belief. The Legislature is not required to share that belief but may, as the creator of the institution of civil marriage, wish to see the proof before making a fundamental alteration to that institution.

Although ostensibly applying the rational basis test to the civil marriage statutes, it is abundantly apparent that the court is in fact applying some undefined stricter standard to assess the constitutionality of the marriage statutes' exclusion of same-sex couples. While avoiding any express conclusion as to any of the proffered routes by which that exclusion would be subjected to a test of strict scrutiny--infringement of a fundamental right, discrimination based on gender, or discrimination against gays and lesbians as a suspect classification--the opinion repeatedly alludes to those concepts in a prolonged and eloquent prelude before articulating its view that the exclusion lacks even a rational basis. See, e.g., ante at (noting that State Constitution is "more protective of individual liberty and equality," demands "broader protection for fundamental rights," and is "less tolerant of government intrusion into the protected spheres of private life" than Federal Constitution); ante at (describing decision to marry and choice of marital partner as "among life's momentous acts of self-definition"); ante at-- (repeated references to "right to marry" as "fundamental"); ante at-- (repeated comparisons to statutes prohibiting interracial marriage, which were predicated on suspect classification of race); ante at--(characterizing ban on same-sex marriage as "invidious" discrimination that "deprives individuals of access to an institution of fundamental legal, personal, and social significance" and again noting that Massachusetts Constitution "protects matters of personal liberty against government incursion" more zealously than Federal Constitution); ante at (characterizing "whom to marry, how to express sexual intimacy, and whether and how to establish a family" as "among the most basic of every individual's liberty and due process rights"); ante at ("liberty interest in choosing whether and whom to marry would be hollow" if Commonwealth could "foreclose an individual from freely choosing the person" to marry); ante at (opining that in "overlapping realms of personal autonomy, marriage, family life and child-rearing," characterized as "fundamentally private areas of life," court uses "integrated" analysis instead of "narrow focus"). See also ante at n. 29 (suggesting that prohibition on same-sex marriage "impose[s] limits on personal beliefs"); ante at n. 31] (suggesting that "total deference" to Legislature in this case would be equivalent to "strip[ping]" judiciary "of its constitutional authority to decide challenges" in such areas as forced sterilization, antimiscegenation statutes, and abortion, even though all cited examples pertain to fundamental rights analyzed under strict scrutiny, not under rational basis test); ante at (civil marriage as "a right of fundamental importance"); ante at (noting State policy of "preventing discrimination on the basis of sexual orientation"); ante at, (prohibition against same-sex marriage inconsistent with "gender neutral laws promoting stable families," and "rooted in persistent prejudices against" homosexuals); ante at (prohibition against same-sex marriage "violated the basic premises of individual liberty"). In short, while claiming to apply a mere rational basis test, the court's opinion works up an enormous head of steam by repeated invocations of avenues by which to subject the statute to strict scrutiny, apparently hoping that that head of steam will generate momentum sufficient to propel the opinion across the yawning chasm of the very deferential rational basis test.

Shorn of these emotion-laden invocations, the opinion ultimately opines that the Legislature is acting irrationally when it grants benefits to a proven successful family structure while denying the same benefits to a recent, perhaps promising, but essentially untested alternate family structure. Placed in a more neutral context, the court would never find any irrationality in such an approach. For example, if the issue were government subsidies and tax benefits promoting use of an established technology for energy efficient heating, the court would find no equal protection or due process violation in the Legislature's decision not to grant the same benefits to an inventor or manufacturer of some new, alternative technology who did not yet have sufficient data to prove that that new technology was just as good as the established technology. That the early results from preliminary testing of the new technology might look very promising, or that the theoretical underpinnings of the new technology might appear flawless, would not make it irrational for the Legislature to grant subsidies and tax breaks to the established technology and deny them to the still unproved newcomer in the field. While programs that affect families and children register higher on our emotional scale than programs affecting energy efficiency, our standards for what is or is not "rational" should not be bent by those emotional tugs. Where, as here, there is no ground for applying strict scrutiny, the emotionally compelling nature of the subject matter should not affect the manner in which we apply the rational basis test. Or, to the extent that the court is going to invoke such emotion-laden and value-laden rhetoric as a means of heightening the degree of scrutiny to be applied, the same form of rhetoric can be employed to justify the Legislature's proceeding with extreme caution in this area. In considering whether the Legislature has a rational reason for postponing a dramatic change to the definition of marriage, it is surely pertinent to the inquiry to recognize that this proffered change affects not just a load-bearing wall of our social structure but the very cornerstone of that structure. See post at--(Cordy, J., dissenting). Before making a fundamental alteration to that cornerstone, it is eminently rational for the Legislature to require a high degree of certainty as to the precise consequences of that alteration, to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice. The court today blithely assumes that there are no such dangers and that it is safe to proceed (see ante at--, an assumption that is not supported by anything more than the court's blind faith that it is so.

More importantly, it is not our confidence in the lack of adverse consequences that is at issue, or even whether that confidence is justifiable. The issue is whether it is rational to reserve judgment on whether this change can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our society. Absent 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 that redefinition will not have unintended and undesirable social consequences. Through the political process, the people may decide when the benefits of extending civil marriage to same-sex couples have been shown to outweigh whatever risks--be they palpable or ephemeral--are involved. However minimal the risks of that redefinition of marriage may seem to us from our vantage point, it is not up to us to decide what risks society must run, and it is inappropriate for us to abrogate that power to ourselves merely because we are confident that "it is the right thing to do." Ante at (Greaney, J., concurring).

As a matter of social history, today's opinion may represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of constitutional jurisprudence, however, the case stands as an aberration. To reach the result it does, the court has tortured the rational basis test beyond recognition. I fully appreciate the strength of the temptation to find this particular law unconstitutional--there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated; the inability to marry has a profound impact on the personal lives of committed gay and lesbian couples (and their children) to whom we are personally close (our friends, neighbors, family members, classmates, and co-workers); and our resolution of this issue takes place under the intense glare of national and international publicity. Speaking metaphorically, these factors have combined to turn the case before us into a "perfect storm" of a constitutional question. In my view, however, such factors make it all the more imperative that we adhere precisely and scrupulously to the established guideposts of our constitutional jurisprudence, a jurisprudence that makes the rational basis test an extremely deferential one that focuses on the rationality, not the persuasiveness, of the potential justifications for the classifications in the legislative scheme. I trust that, once this particular "storm" clears, we will return to the rational basis test as it has always been understood and applied. Applying that deferential test in the manner it is customarily applied, the exclusion of gay and lesbian couples from the institution of civil marriage passes constitutional muster. I respectfully dissent.