Gay Marriage Debate Rages On . . . And On . . .

Fear of commitment when it comes to marriage is not uncommon among men - just ask Tom Reilly. As Bostonist has noted before, the position of the Attorney General and Democratic frontrunner for the governorship on same-sex marriage has not toed the state party's pro-gay marriage line. His decision yesterday to certify an anti-gay marriage ballot question that could amend the state constitution is too legally complex to lend itself to the sort of snide, opinionated policy analysis in which Bostonist usually engages, so we'll leave the sharp criticism to our eminently qualified blogosphere colleagues. There is one thing, though, that we think merits mention: Even if the ballot question is permissible under the state constitution, and even if it is eventually approved by the voters, we wonder whether it would hold up under the federal Constitution.

The proposed ballot measure contains a grandfather clause, preserving all existing gay marriages while prohibiting future ones, which the measure's proponents believe makes it more constitutional. (The theory is that it won't actually take away any rights from anyone aside from the intangible potential to get married.) Technically speaking, any grandfather clause could be a violation of the Equal Protection clause of the Fourteenth Amendment because it makes the law treat people differently even though they are in exactly the same position. However, the Supreme Court has traditionally examined grandfather clauses with its most forgiving standard of review: as long as the group that the law discriminates against is not a traditionally downtrodden one (which here wouldn't be the case, since the law would discriminate among gay people, not against them) and the state has some sort of rational explanation for the unequal treatment (usually related public health or economics in some way), the high court tends to approve.

This relaxed, just-give-us-some-plausible-explanation approach is called rational basis review, and historically it has meant that the Supreme Court would almost certainly uphold the law in question. But in the last ten years or so, the Court has started using something that analysts call "rational basis with teeth." In some recent cases, the Court has declined to rubber-stamp the actions of state legislatures and instead has actually said, "Hey, hold on a minute - that's not related to a legitimate state interest at all!" Interestingly, a leading case in this area involved an amendment to the Colorado state constitution (approved by voters, no less) that prohibited local governments from enacting non-discrimination laws that protected gays. The Supreme Court said there was simply no good reason for the state to prohibit cities and towns from banning discrimination against gays and lesbians.

Bostonist knows that lawyers are crafty people, and we are sure some of them will devise an explanation for allowing some gay couples to file taxes jointly while others may only file separately. Honestly, though, we are hard-pressed to imagine what that explanation could be. Limiting the sorts of people who can get married is a far cry from the kinds of grandfather clauses that courts have approved in the past (e.g. regulating the number of pushcarts operating in a historic district or the number of licensed plumbers working in a particular town), since it doesn't bear directly on health, public safety, or economics. Then again, the Supreme Court will be a different place in coming years, so who knows what will happen?