Mary Ann Glendon and Hadley Arkes have an op-ed in the Boston Herald today (it’s not online) that provides a brilliant alternative to the Hobson’s choice provided by the Massachusetts Supreme Judicial Court on same-sex marriage. Pro-marriage legislators and the governor have been saying that the only choice is to pass a civil unions bill to mitigate the effects of full-blown same-sex marriage (even though it would essentially be the same thing). Pro-gay legislators say the court only leaves room for full marriage for gays. And pro-family activists are saying that either we should pass a constitutional amendment (which will take years and has no guarantee of success) or impeach the justices for violating their constitutional mandate (which would require that legislators grow spines).
Glendon and Arkes provide another way. The court said, in its opinion, that the Mass. Department of Health did not adequately justify the law that limits marriage to one man and one woman and the law itself does not set forth the grounds upon which it is based. So, the two law professors say the Legislature should do just that:
Reaffirm and clarify the current marriage statute to define marriage as between one man and one woman. And include within the re-enactment the expressed legislative findings, stating clearly the rational basis for reserving the status of marriage to one man and one woman.
That’s simply brilliant in both its simplicity and effectiveness. It gives an out to legislators, including Speaker of the House Tom Finneran and Gov. Mitt Romney, who previously thought there was nothing they could do.
Now, pro-gay activists could respond by asking the court to re-issue its ruling, saying explicitly that there can be no rational basis for denying gay marriage, but that would take a long time to go through the whole process, and meanwhile we could continue the effort for a constitutional amendment.
I hope Finneran and Romney are listening.
The rest of the court’s ruling spells out why it violates the constitution. It actually delves into the rational basis for the law itself. The Glendon/Arkes column says: “It is important to note in this context that the court read the existing statute to uphold marriage between one man and one woman, but found therein no rational explanation for the policy. In sum, the Supreme Judicial Court has committed itself to the rational basis standard for constitutionality and, as a result, it has left open this approach as a response.”