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As Bostonist's non-lawyer friends stumble into work today and read the paper, they keep e-mailing us and asking, "Bostonist, you law-talking person, how is it that the Supreme Judicial Court can rule that a ban on same-sex marriage is unconstitutional generally, but OK when applied to out-of-state couples?" Allow us to explain.
This case involves a challenge to an old law that says no one from out-of-state can get married here if they would be forbidden from doing so in their home state (unless they intend to move here). Since no other state expressly allows gay marriage and many expressly forbid it, the practical effect of the law is that gay marriage in Massachusetts is definitely limited to locals and residents of the handful of states with no prohibition on gay marriage, and possibly limited to only Mass. residents.
The reason there can be different rules for Massholes and everyone else has to do with how constitutional challenges are evaluated by courts. When someone says a law is unconstitutional because it doesn't provide equal protection to a certain group (which is what led to the Goodridge decision that legalized gay marriage), the court first looks at the law being challenged to see whether it distinguishes among people based on a "suspect classification." Suspect classifications affect "protected classes" of people - those that have historically been discriminated against by law and custom. Suspect classifications (or "quasi-suspect" classifications, a distinction not worth getting into here) include race, sex, national origin, citizenship status, religion, or illegitimacy (that is, being born out of wedlock). (It seems weird that homosexuals aren't a protected class, right? Bostonist thinks so.)
Laws that affect a protected class have to be motivated by a compelling government need and must be well-designed to meet that need efficiently (sorry lawyers, Bostonist is simplifying here). If a law doesn't affect a protected class, it gets the lowest level of court examination: "Rational basis review." This means that if there is any rational government purpose for the law, it's OK. The Goodridge decision said there was no rational reason to deny marriage to gay people. (More on rational basis review and gay marriage here.) But in the case of out-of-state gay marriage, the SJC ruled that there is a rational reason: Comity, which is a fancy way of saying that states like to be nice to one another and get along.
The weird thing about this latest decision is that it is only possible because homosexuality has not been defined as a protected class. If other states still banned interracial marriage, comity would have to give way to preventing unequal treatment on the basis of race. The only dissenter in yesterday's SJC decision, Roderick Ireland, suggested that a ban on gay marriage is actually discrimination on the basis of gender, not sexual orientation, so it should get closer judicial scrutiny (Bostonist explains this argument here - scroll down to the 17th comment). Bostonist, for our part, agrees with Ireland, and also thinks comity is dumb.
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Hey there. Ease up on comity. Without it, wouldn't the Commonwealth just have to wage war on Kansas? (And let other, bigger, blue states handle the likes of Texas?)
Actually, I figured it would be good enough simply to ignore Kansas (and Texas), but if no comity means MA vs. KS, well, bring the ruckus.
"The weird thing about this latest decision is that it is only possible because homosexuality has not been defined as a protected class. If other states still banned interracial marriage, comity would have to give way to preventing unequal treatment on the basis of race..."
This is not just a "weird thing." The Court considers specific factors before it decides how much protection to give a class, such as whether the group is defined by an immutable characteristic over which members have no control, whether it has been the subject of bad/hostile treatment throughout history (by the government, not society in general), and whether insular minority status makes individuals unable to obtain political power.
Race and alienage are the ONLY classifications to get strict scrutiny, which means that the law must be narrowly drawn to serve a compelling government interest. Gender classifications get intermediate scrutiny, which means that the law must be substantially related to important government objectives. Sexual orientation gets only rational basis, where the law must be rationally related to a reasonable governmental purpose.
Strict scrutiny is not always as protective as it sounds, as it applies whether the law is helpful or discriminatory group. This is why it's still ok to have all female schools, but affirmative action practices based on race must be narrowly drawn.
Homosexuality does not get strict scrutiny because it does not meet the factors the Court uses. And while rational basis review is very deferential, laws do get struck down at this level - hence the reason homosexual activities can no longer be outlawed, and why Massachusetts has legalized gay marriage. But Massachusetts decisions are not controlling law in other states, and thus commity (respecting the law of other states as we expect them to respect ours) is quite reasonable as to this group.
Lawgirl, you have neatly and accurately summarized intermediate scrutiny, which I glossed over for lack of space. Still, I think it's curious that homosexuals don't get protected class status - they seem to meet the standards you enumerate (from the famous footnote four in the Carolene Products case). I also think, as J. Ireland says in his concurrence, that the right way to look at gay marriage is through the lens of sex, not sexual orientation. "Gay marriage," after all, describes the nature of the relationship, but when the Supreme Court looked at interracial marriage, it didn't look at the relationship and determine that the question was whether miscegenators were a protected class. It looked at the individuals involved (one black, one white) and recognized that a ban on interracial marriage was functionally race discrimination. Just so, a ban on gay marriage is functionally sex discrimination.
As for comity, I guess I am hard-pressed to see what's so great about it. You're right that our courts' decisions aren't controlling in other jurisdictions, and naturally the gay marriages we sanctify won't be worth anything in other states. But why should that be our concern? If our constitution prohibits discrimination while other states' constitutions enforce it, why is it better to accommodate them than for them to accommodate us?
Homosexuality does not meet the Carolene standards, but then neither do classifications based on advanced age or mental retardation - and certainly those groups face adversity. The Court hates adding groups to strict scrutiny and creates amorphous standards like "rational basis with bite" to strike down laws without adding another strict scrutiny group.
Homosexuality is not immutable in the way that being an Asian person or someone born out of this country is immutable. All people have varying levels of sexual orientation throughout their lives. You wouldn't say a newborn is a homosexual, and many homosexuals engage in heterosexual behavior and vice versa.
They are not a discrete and insular minority - they grow up in families with heterosexual parents and siblings and neighbors rather than in segregated from the rest of society.
They are not systematically disadvantaged in the political process - they have the right to vote and vocal lobbying groups.
Loving v. VA did strike down the idea that equal application of a law does not make it ok. However, the reason that law was struck down was that its only purpose was maintaining white racial purity, which was far from the requisite compelling interest. Here, the court found commity to be a sufficient interest.
We're not deferring to foreign states any more than they're deferring to us. This decision maintains the conflicts of law principle that the state of domicile has the greatest interest in formulating its own policy regaring the marriages of its citizens. If a wife from a foreign state came into Massachusetts to sue her husband in tort, we would honor the home state's policy regarding spousal immunity, as well, even though we'd apply our own law for a lot of other aspects of the case.
I know that the Supreme Court doesn't like to add groups to its strict scrutiny list, I just think that's silly (I know - the Supremes won't be wringing their hands over my disapproval, but still). It seems to me it would be a much more straighforward and logically consistent approach not to create amorphous sub-standards like intermediate scrutiny and rational basis with bite, and that the distinctions there simply aren't supported by fact.
I mean, to say that historical discrimination and lack of access to the political system have been so much worse for aliens than for women strikes me as slicing too thinly, and then to delve into the mutability of homosexuality or its relative non-insularity feels like analytical overkill in the service of a predetermined outcome. Just as homosexuals are born into and grow up in herterosexual families, mixed-race people are born into and grow up in families with white members; Just as homosexuals may engage in heterosexual activity or otherwise hide their homosexuality, many people of one race can effectively hide that race and live "as though" they were white. I don't think these things detract from the ultimate truth that people are discriminated against on the basis of both race and sexual orientation, and that such discrimination, although justifications and bases are offered in its defense, amounts to discrimination for its own sake.
I guess that's really the heart of my objection to making comity a good reason to respect other states' discriminatory laws against homosexuals: The SJC says it's deferring to the interests and judgment of sister states' legislatures, but that judgment is, at base, discriminatory in intent. The effect, then, is to require a discriminatory act on the part of our government, hiding behind the less objectionable facade of interstate good relations. The reason I wrote that this is "weird" is because we're enforcing a provision of other states' laws that wouldn't even pass rational basis review if our own legislature enacted it, and wouldn't pass muster if it were identical except to deny certain rights on the (equally arbitrary) basis of race rather than sexual orientation. It's a funny quirk of constitutional doctrine that requires Mass. to respect a particular form of overt discrimination by other states.
"...many people of one race can effectively hide that race and live "as though" they were white."
Historically that has not been true. The cases protecting race arose out of the freeing of the slaves. A financially doomed sharecropper subjected to segregation in the 1930s in the South would take great offense to the proposition that homosexuals, who have the same access to education and other opportunities as heterosexuals, have experienced the same level of hardship. Gender does not get the same level of scrutiny because laws based on that classification are more likely to be based on real differences, and we celebrate the differences between the sexes. Racial laws are more likely to have no purpose other than discrimination, which is fundamentally offensive to national policy. People who disapprove of homosexuality have a moral problem with homosexual actions, whereas someone who dislikes black people objects to that person's mere status as a member of a race.
In closing, it's just different!!
I'll concede the historical differences between racism and homophobia (although the fact that a sharecropper finds the comparison offensive doesn't trouble me too much - I bet women in this country before 1920 wouldn't have felt great about getting intermediate scrutiny when they couldn't even vote), I just disagree that they should be dispositive. As for the difference between racism and homophobia, lawgirl, you and I shall have to agree to disagree; "a moral problem with homosexual actions" seems like a euphemistic way of saying that people don't like it even though it doesn't affect them or hurt anyone. If discrimination against gays is distinguishable because it's about actions and not biological status, is discrimination on the basis of religion also distinguishable? If I say I have a moral problem with the actions of Jews, does that make me less of an antisemite?