Goodridge v. Department of Public Health

Justice Greaney agreed with the result and remedy but would have resolved the case more directly under traditional equal-protection analysis. In his view, the exclusion categorically deprived otherwise qualified individuals of the fundamental right to marry the person of their choice, an injury far more serious than a mere denial of statutory benefits.

He characterized the marriage restriction as sex-based discrimination under Article 1, as amended by Massachusetts's Equal Rights Amendment. Hillary Goodridge could not marry Julie Goodridge because Hillary was a woman, and Gary Chalmers could not marry Richard Linnell because Gary was a man. The relevant constitutional protection belongs to individuals, not abstract categories, so equal application of the restriction to men and women did not eliminate its sex-based character.

Because the law both burdened a fundamental right and used a sex-based classification, Justice Greaney would apply strict scrutiny. The Commonwealth therefore needed a compelling purpose accomplished by no less restrictive reasonable means. The State's procreation, child-rearing, and resource-conservation rationales failed for the reasons set out in the court's opinion, particularly because the exclusion harmed children in same-sex-parented families while Massachusetts otherwise protected those families.

Justice Greaney rejected reliance on tradition as a constitutional answer. Defining marriage by the traits of those historically allowed to enter it merely restated the exclusion rather than justified it. Moral or religious objections could not sustain a governmental hierarchy that treated same-sex couples and their families as less worthy of legal and social recognition.

Justice Sosman argued that the majority did not actually apply rational-basis review. That review asks only whether a Legislature could rationally believe that a classification advances a legitimate purpose, not whether judges find the Legislature's policy persuasive or wise. In her view, the majority's repeated references to fundamental rights, dignity, and invidious discrimination improperly heightened scrutiny without expressly saying so.

The Legislature could rationally support the historically successful opposite-sex marital family while withholding identical official endorsement from a newer family structure whose long-term effects, in the Legislature's view, remained unsettled. Scientific research concerning children raised by same-sex couples was comparatively recent, limited in duration, and contested. A legislature could rationally await more evidence before fundamentally redefining marriage.

Justice Sosman emphasized that allowing same-sex couples to live together and raise children did not constitutionally require the State to extend the full set of marital benefits to every permissible household arrangement. The court's view that same-sex couples can provide loving and stable homes might be compelling as a policy matter, but the constitutional question under deferential review was whether legislative caution was rational.

She concluded that the decision might be celebrated as social progress but was, in her view, an aberration in constitutional doctrine because it distorted the highly deferential rational-basis standard.

Justice Cordy maintained that the right to marry a person of the same sex was not a recognized fundamental right. In his view, precedents describing marriage as fundamental rested heavily on marriage's historical connection to heterosexual intercourse, procreation, and the resulting parent-child relationships. The licensing statute did not intrude on plaintiffs' intimate relationships, sexual conduct, or parenting; it declined only to confer the legal status of marriage.

He also rejected the concurrence's view that the restriction was sex discrimination. The statute treated men and women identically: each could marry a person of the opposite sex and neither could marry a person of the same sex. Unlike an antimiscegenation law designed to perpetuate racial supremacy, the Massachusetts marriage law was not intended to advantage men over women or women over men. He further cited the 1976 Equal Rights Amendment's legislative history, which indicated that its supporters did not understand it to authorize same-sex marriage.

Applying rational-basis review, Justice Cordy concluded that the Legislature could legitimately preserve marriage as the institution linking heterosexual intercourse, procreation, and child rearing. Marriage, in his account, helps connect fathers to mothers and children and promotes a stable setting in which children are born and raised.

The Legislature could rationally conclude that married opposite-sex parents provided the optimal child-rearing structure, even while allowing same-sex couples and single people to adopt when that structure was unavailable. It could also rationally proceed cautiously because the social and empirical consequences of recognizing same-sex marriage were disputed and not yet fully known.

Justice Cordy argued that the choice to expand marriage was a profound social-policy judgment belonging to the Legislature under the separation of powers. In his view, the court substituted its own policy assessment for a debatable legislative judgment and should have left further change to democratic processes.

Justice Spina focused on separation of powers. He argued that the Legislature, not the judiciary, has the authority to regulate and redefine marriage, and that the court transformed itself from a protector of established individual rights into a creator of a new right.

He rejected the equal-protection theory because the statutes did not disadvantage either sex: men and women were equally limited to marrying someone of the opposite sex. He also read Loving v. Virginia as invalidating a race-based barrier within the existing institution of marriage, not as establishing an unrestricted constitutional right to marry any chosen person.

Justice Spina likewise found no due-process violation. Same-sex marriage was not deeply rooted in Massachusetts or national history, and the statute did not regulate the plaintiffs' private intimate conduct. Unlike laws criminalizing private sexual activity or restricting reproductive choices, the marriage statutes provided formal state recognition to a defined relationship rather than intruding into private life.

Finally, he objected to the court's gender-neutral redefinition of marriage as judicial rewriting of a statute contrary to the Legislature's clear intent. Where the Legislature had deliberately maintained marriage as a union between one man and one woman, he concluded that such a fundamental revision had to come through legislation or constitutional amendment, not judicial construction.