HLS Panel Mulls Over Gay Marriage

The Massachusetts Supreme Judicial Court’s ruling in support of gay marriage drew sharp criticism from Harvard Law School professors at a panel discussion yesterday afternoon.

The court’s ruling—issued in November and reaffirmed in a message to the state Senate on Wednesday—evinced “self-intoxicating narcissism and arrogance right on the surface,” said Williams Professor of Criminal Justice Richard D. Parker.

Before an audience of more than 200 in Austen Hall, Parker said the ruling in the case Goodridge v. Department of Public Health was “as sloppy of an opinion as you could want to read.”

Tyler Professor of Constitutional Law Laurence H. Tribe ’62 responded with a passionate defense of the opinion, calling it a “masterpiece.”

Tribe last month authored a friend-of-the-court brief, signed by 18 professors from Harvard Law School, encouraging Massachusetts judges to explicitly support same-sex marriage, rather than civil unions.

But Tribe found himself in a minority of one as Professor of Law Janet Halley and Assistant Professor of Law David J. Barron ’89 joined the chorus criticizing the court’s decision.

Parker argued that the court’s decision subverted democratic processes.

He predicted a popular backlash and said that judges ought to face consequences as a result of their arrogance.

“The price should be a change in the constitution of the state so that judges have to be elected—or at least they should be term-limited,” Parker said.

He said the court should have taken a more “gradualist” approach, allowing the state legislature to institute civil unions instead of gay marriage.

According to Parker, if the court had pursued a civil union approach, voters would have slowly come around to accept gay marriage.

He predicted that a pro-gay marriage majority would likely have emerged in Massachusetts within a decade.

All four professors mulled the political implications of the ruling. Parker said that the focus on gay marriage could push Senator John F. Kerry, D-Mass., into a corner.

Kerry, the frontrunner for his party’s presidential nomination, issued a statement on Wednesday reiterating his support for civil unions but opposing gay marriage.

“I don’t think Kerry is going to let Bush—as a rhetorical matter—be less against [gay marriage] than he is,” Parker said.

Tribe said that Kerry could seek to avoid discussing gay marriage by focusing attention on economic issues. But this is a taller order now that the issue is emanating from Kerry’s home state.

“If I were one of Bush’s people right now, I would force Kerry into saying whether he supports a state constitutional amendment [reversing the court’s ruling],” Parker said.

According to Tribe, 37 states have passed laws barring recognition of same-sex marriages, and Ohio Gov. Bob Taft could soon make his state the 38th.

“Thirty-eight is a magic number because it’s the smallest integer that is more than three quarters of 50,” Tribe said, in reference to the number of states needed to amend the U.S. Constitution.

By holding state-wide referenda on gay marriage, Republicans can motivate their socially conservative constituents to flock to the polls, Tribe said.

But changing the Massachusetts constitution would be a trickier task.

According to Barron, who is a former Crimson president, an amendment to the state constitution could not be passed until 2006.

Barron criticized the Massachusetts court’s emphasis on federal rather than state constitutional precedents.

He said the decision fails to recognize Massachusetts as a unique political entity.

“There’s no mention of the demographics of Massachusetts. There’s no mention of the fact that Massachusetts has a large Catholic population, or the fact that it has a large gay population,” he said.

“It was a mistake to highlight so prominently the federal constitutional case law,” Barron concluded.

The court’s November decision echoed the language of the U.S. Supreme Court’s Brown v. Board of Education decision of May 17, 1954, which barred segregation in schools.

The Massachusetts court’s decision stayed its ruling for 180 days—until May 17.

“I have wondered if it was a conscious decision that the stay would run out on the 50th anniversary of Brown v. Board of Education,” Tribe said.

Strange Bedfellows

Barron and Halley also criticized the judges for ignoring some of the sociological effects of their decision.

The judges who authored the majority and concurring opinions “articulated a socially conservative vision of marriage as the foundation of the social order,” Halley said.

The ruling marks an emerging trend of gay rights advocates reifying marriage—and devaluing less formal domestic partnerships, according to Halley.

“The gay centrist and social conservative formulations are overlapping more and more,” Halley said.

“We could have some really interesting sex politics now,” she added.

Tribe conceded that the court’s ruling creates a plethora of legal anomolies.

While Massachusetts currently prohibits marriage between brother and sister, state law might have to be amended to bar unions between siblings of the same sex as well.

But Tribe noted that judges could potentially rule that their decision in the Goodridge case renders other marriage laws gender neutral as well.

—Staff Writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.