Justice rests not on hope
Justice rests on reasoned, consistent principle, not on hope.
That is the heart of the lone dissent to the Massachusetts Supreme Judicial Court decision last week that embraced a long-forgotten state law dug up three years ago by craven politicians for no other purpose than to undermine gay marriage.
In upholding the right of Massachusetts officials to deny marriage licenses to nonresident, same-sex couples, the state's highest court gave greater weight to the discriminatory laws of other states than it did to its own landmark ruling in 2003 declaring civil marriage a fundamental constitutional right, regardless of gender.
''A principle, inconsistently applied, is not a principle at all," wrote Associate Justice Roderick L. Ireland, who, alone among the seven justices on the SJC, acknowledged in his impassioned dissent the political animus behind the resurrection and selective enforcement of an abhorrent state statute with roots in the nation's racist past.
His opinion got scant attention last week, but one inevitable day, when the right of homosexuals to full participation in the civic life of this country is universally established, legal scholars will find the roots of social change as much in Ireland's stinging dissent as they will in the stirring language of Chief Justice Margaret H. Marshall in Goodridge v. the Department of Public Health.
The 1913 law upheld by the SJC last week prohibits the issuance of marriage licenses to couples that would be barred from marrying in their home states. The original targets were interracial couples seeking to evade the miscegenation laws common in other states but never adopted in Massachusetts. Gay is the new black.
The continued existence of an indefensible statute does not compel the Commonwealth to defer to the discriminatory practices of other states, Ireland argued, citing an 1843 case in which Massachusetts at once acknowledged the legality of slavery in other jurisdictions and extended liberty to a fugitive slave.
By granting freedom to a slave child from Louisiana who made her way to Massachusetts, Ireland noted, the court ''established the principle that a liberty or right under the Constitution of Massachusetts that is available to citizens of Massachusetts, can be extended to others who travel here from other States, regardless whether their home states deny them those same rights."
That she would have been subject to the laws of Louisiana if she had returned was a reality beyond the purview of the Massachusetts court.
By ignoring that precedent, the current court ''creates a second class of persons who seek full protection and enjoyment of the laws of the Commonwealth, quite simply, to marry without the burden of invidious discrimination," Ireland wrote.
Justice Francis X. Spina appears to hope that if Massachusetts refuses to let John and Jim from Ohio marry here, then Ohio might be willing to recognize the legal marriage of Joan and Jane from Northampton if they happen to move to Toledo. ''. . .by giving respect and deference to the legislative enactments and public policy pronouncements of other jurisdictions, it is my hope [and rational and hopeful for the Commonwealth to believe] that principles of comity will have a significant impact on other jurisdictions if, and when, confronted with the issue whether to recognize validly contracted same-sex marriages of Massachusetts couples, even where these couples would not be able legally to marry in such other jurisdictions."
Well, hope springs eternal, but wishing on a star is a risky legal strategy when the stakes involve fundamental human rights.
The more likely result of the SJC decision will be campaigns in states that have not explicitly banned gay marriage to do so.
Samuel Johnson, the 18th-century English writer, famously characterized second marriages as ''the triumph of hope over experience." There is no hope for nonresident same-sex couples in Massachusetts after the state's highest court has foreclosed to them the experience of any marriage at all.
