MASSACHUSETTS SJC

Some have argued that the Massachusetts Supreme Judicial Court’s rulings on Goodridge, especially the unfavorable advisory opinion on the civil unions bill (PDF file here), have the potential to create a backlash. See the Boston Globe, here and the Rocky Mountain News, here.

Jack Balkin has a subtle version of this argument: the court risks a backlash because it was inept in handling its relationship with the Massachusetts legislature. So some legislators who would have supported a a civil unions bill will now vote for a constitutional amendment to overturn Goodridge itself:

[M]any Massachusetts legislators who would have supported a civil unions bill now will vote for a amendment to the Massachsetts state constitution defining marriage as the union of one man and one woman. Such an amendment could not take effect until at least 2006. Nevertheless, the Court has wasted an opportunity to get half a loaf (and possibly a full one) when it may well end up with none in the long run.

Some argue that the idea of a backlash is overblown. See here, for example.

Assuming for the moment that there is a backlash, though, it seems to me that there are three reasons why it might not matter:

1) The SJC may still have succeeded in shifting the national-level debate such that civil unions appear to be the moderate position between proposals to ban all state recognitions of same-sex partnerships and proposals to forbid any and all distinctions between same-sex and heterosexual partnerships. This may be what is happening in the presidential race.

2) The SJC will still have raised the salience of same-sex marriage. Once gay marriages happen in Massacusetts and civilization does not, in fact, collapse – in the Bay State or anywhere else – then opponents will have to work harder to shape the public debate.

3) In politics, timing is very important. Circumstances could still intervene to crowd out the FMA (and related) agenda. Imagine, for example, if there is (God forbid) another serious terrorist attack. Security would almost certainly crowd out all other issues on the public agenda. The FMA would seem like a waste of time and perhaps even a divisive installment in the “culture wars” that should at the very least be placed on the back burner for a while. It would be hard to imagine that the President would want to spend political capital on the issue, lest he raise concerns that he is harnessing the security issue in inappropriate ways. Some have said that the administration has harnessed 9/11 inappropriately, of course, and without expressing any opinion on that matter, I think it’s safe to say that the political skill of this administration should not be underestimated, and I don’t want to rule out the use of presidential authority in favor of limiting same-sex marriage. Nonetheless, the success of the political backlash against the SJC will likely partly depend on circumstance and especially on the ability of advocates of the backlash to keep the issue on the agenda.

The third point is dependent on circumstance, but the first and second points are reasons to celebrate the ruling, seems to me. That’s not to say that Jack Balkin is wrong – the SJC could have gone about the issue in a much less clumsy fashion (by simply granting marriage licenses to the plaintiffs rather than appearing to open up space for legislative compromise and then closing it again with the advisory opinion). Still, to the extent that the first and second points above are right, an uncompromising stance by the SJC may have set the stage for national-level gains for gays and lesbians that are greater than would have been the case if the SJC settled for civil unions.