Gay Marriage and the Federal Judicial Confirmation Process

April 8, 2004

Brian J. Murray, David S. Petron

Last year saw momentous advances in civil rights for homosexual persons. First, in Lawrence v. Texas, 123 S. Ct. 2472 (2003), the U.S. Supreme Court struck down as unconstitutional a Texas statute outlawing homosexual sex acts under a rationale broad enough to make it unlikely that any State can successfully prosecute such acts. The decision, and the new right to homosexual intercourse it created, was all the more dramatic because to achieve it, the Court had to overrule its own recent precedent, Bowers v. Hardwick, 478 U.S. 186 (1986). Then, a few months later, in Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (2003), the Supreme Judicial Court of Massachusetts decided that the Commonwealth’s laws allowing only persons of different sexes to be married violated the Massachusetts Constitution. In the course of its opinion, the Supreme Judicial Court referred extensively both to the result and to the interpretive methodology employed in Lawrence as justifying its result and approach. Emphasizing that its opinion marked a fundamental change in Massachusetts marriage law, the Court boldly declared that the Massachusetts Constitution not only forbids discrimination against homosexuals in this manner, but affirmatively requires that homosexuals be allowed, if not to marry, then to at least something closely akin to marriage. The Court left the details of fashioning an appropriate remedy in the first instance to the Massachusetts Legislature. Thus, without a majority of Americans, or even of Bay Staters, stating their policy preferences, homosexuals gained two important rights: the right to engage in homosexual sex acts anywhere in the Republic, and the right to marry, or something close to it, in the Commonwealth of Massachusetts....

Gay Marriage and the Federal Judicial Nomination Process