The Failure of the “Equality” Justifications for Same Sex Marriage

V. The Goodridge Decision

At the outset of the majority opinion in Goodridge, Chief Justice Margaret Marshall makes two important points which, by themselves, appear to reflect widely held non-controversial views. The first is that marriage is a “vital social institution.” Her second is the recognition that the “exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society.” However, a few short phrases later, the majority opinion in Goodridge unflinchingly declared that the Commonwealth of Massachusetts “has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.” This supplies the need to go back and reexamine her claim regarding the “exclusive commitment of two individuals” in marriage. What appeared to be an innocent statement is not.

By emphasizing the Massachusetts constitution’s affirmation of “dignity and equality of all individuals,” the majority acknowledged that it was engaging in a radical departure of legal norms when it asserted that its “decision marks a change in the history of our marriage law.” From the very outset, this decision does not, as the majority contended, foster human dignity and equality. Rather, it artificially manufactured a rule conferring marital status and its attendant benefits that is a revolutionary alternative to the tradition and convention of marriage, i.e., the legally recognized association of two persons of the opposite and complementary sex.

In its innovative redefinition of marriage, the majority relied, by way of Lawrence, on the Casey phrase: “Our obligation is to define the liberty of all, not to mandate our own moral code.” But, in fact, it was not liberty that was defined; it was the imposition of a court’s legislative initiative that redefined marriage that replaced the accepted moral code with its own. Even though the Lawrence majority avoided the issue, the Massachusetts court concluded that the Lawrence decision paved the way for same-sex couples to enter the marital state. As the Goodridge majority asserted, the Commonwealth’s “exclusion [of same-sex marriage] is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”

By way of defending the Casey and Lawrence formulations, the Goodridge majority said that individual liberty and equality are safeguarded thereby protecting citizens from unwarranted government intrusion in “protected spheres of life” and enabling citizens to avail themselves of benefits conferred by the State for the “common good.” The Goodridge majority asserted that both of these expressions of liberty and equality are at the core of justifying same-sex marriage. As the Goodridge majority stated, “Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family—these are among the most basic of every individual’s liberty and due process rights.” In support of this argument, the Goodridge majority relied on Casey’s language that states “our law” constitutionally protect “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” But, as we know, Justice O’Connor cautioned that the language of Casey and Lawrence was not to be construed as supporting the redefinition of marriage or the institutionalization of same-sex marriage.

But in fact, in the context of the movement for recognition of same-sex marriages and unions, the desire to protect privacy and personal decisions was not the objective of same-sex marriage advocates, but the legal and public recognition by the state and the acceptance by society of these same-sex relations were their goal. The reliance on privacy, as promoted by Casey and Lawrence, was a subterfuge to alter dramatically the public institution of marriage and the family life that ensues from marriage. The assertion made by Justices O’Connor, Kennedy, and Souter in Casey that “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” is an understandable principle, but it is not without limitation—a fact overlooked by advocates of same-sex marriage and unions and the Goodridge majority.

For example, by relying on Casey, two young people of age fourteen may decide that they have a Constitutional right to marry one another, but the state and its members (especially the families of the couple) can stop this—at least for the time being in that state law would prohibit underage marriage. A brother and sister, regardless of age, may decide that they intend to marry one another, but again the State and others can preclude this on the grounds of the closeness of their consanguinity. The liberty to “define one’s own concept of existence, of meaning of the universe, and of the mystery of human life” is not above or beyond the scrutiny of the servant State for some exercises of this “liberty” could well be disordered rather than ordered and thus adversely affect the common good.

Indeed the state cannot and must not be permitted to dictate who can marry and who cannot (subject to rational requirements and restrictions such as degrees of consanguinity and age as I have already suggested). This does not mean that the State through the rule of law—a law that is moral (for public acts which that law deals cannot be insulated from moral considerations), impartial, and just—cannot regulate marriage which is not exclusively a personal matter but a social one as well. The government and its juridical structures are prohibited from making unwarranted intrusions into marital relations; nevertheless, they are warranted to intervene by regulation or restriction where the common good and ordered liberty are compromised. I suggest that the campaign for same-sex marriage presents such a case for intervention.

Nevertheless, advocates for same-sex marriage play the “equality card” with sincerity and vigor. For example, Professor George Chauncey is one same-sex marriage advocate who has expended much energy in advancing the equality argument. In his effort to equate homosexual rights with civil rights, he makes the interesting assertion that the post-Second World War era saw the emergence of an “identity movement” in which “sexual identity provided a key to the self and that being gay categorically barred one from citizenship rights.”

This extraordinary claim merits careful scrutiny as one considers the political, social, and economic issues with which the civil rights movement has been historically concerned. Were homosexuals denied the franchise as were members of certain racial groups and women? No. Have homosexuals been denied the right to own property? No. Has the right of homosexuals to contract been the target of interference? No. Have they been denied the right to petition their government? No. Has their ability to assemble like any other group been compromised? No. In this last context, one need only consider the “Gay Pride Day” parades that take place annually in cities such as Boston, New York, San Francisco, and Los Angeles. Being or thinking one was of a homosexual orientation has not been the basis of denying these rights. Moreover, homosexual men and women have shared precisely the same status as anyone else regarding the right to marry: no man (regardless of his sexual orientation) could marry another man, and no woman (regardless of her orientation) could marry another woman. In a precisely important sense, this is equality, pure and simple.

It does not appear that Justice Kennedy and the majority in Lawrence identified any violations of general “citizenship rights” among members of the homosexual community; moreover, their opinion is devoid of suggestion indicating that this was the case. As Professor Chauncey indicates, “So long as gay people remained ‘discreet’ and didn’t tell people they were gay, most of their fellow workers and straight friends did not care to ask.” Unlike members of certain racial groups and women who did face discrimination in exercising some of the enumerated rights inextricably related to citizenship, homosexual persons have not been so burdened. Professor Chauncey, moreover, puts his finger on the critical issue when he posits that “like the leaders of many minority and ethnic groups…, the nascent gay movement embraced a largely assimilationist platform by stressing their allegiance to the nation, their desire to integrate the homosexual into the larger society, their conformity with all American social conventions save the one that distinguished them…” It is clear that homosexual persons enjoy the general rights of citizenship; moreover, they share the same status as every other member of society when it comes to marriage rights and restrictions for they are equal to every other person in this context.

The real concern of Professor Chauncey focuses on the acceptance of the sexual promiscuity that began in the latter part of the 1960s. As he indicated, the homosexual movement was “profoundly shaped by the sexual revolution” of this period, and the ensuing “frankness in sexual matters” that he investigated served as a major catalyst to be “openly gay.” He then offered an interesting hypothesis that this “new openness” and insistence on “equality with heterosexuals” targeted the members of the homosexual community by another growing movement: those who advocated for “traditional family values.” But this is an entirely different argument than the one crucial here: namely, that homosexual persons are treated unequally when the ability to marry is under consideration. As I have already pointed out, they are not.

Academics and advocates such as Professor Chauncey expend considerable efforts to demonstrate that marriage has been a changing or evolving institution throughout human history. A critical part of the argument for equality is that if men and women have a right to choose their partner, it should not be restricted to a person of the opposite sex. Once again, the traditional legal norm prohibiting same-sex unions applies universally to all persons (be they heterosexual or homosexual), not just those who identify themselves as homosexuals. If personal choice rather than social norm is at the core of the right to choose marital partners, then why restrict the equality argument to a single adult person of the opposite or same-sex whose closeness in relationship (consanguinity) should not be a factor? The equality argument that is based on Casey and Lawrence ultimately brings us to question other views about marriage partners—their ages, the number of partners (an issue of critical importance to polygamists), and their degrees of consanguinity—that should be entitled to the same “equality” that same-sex marriage advocates expect and demand.

The idea promoted by Professor Chauncey runs into difficulty when one considers that the heterosexual marriage partners, because of their biological nature, are typically capable of reproducing with one another but the homosexual partners are not. This distinction is not something that can be altered or ignored by the law for it is imbedded in the biology of human nature that is reflected in complementarity of opposite-sex marriage partners and, furthermore, is at the core of marriage—the way to the posterity of the human race. It is at this point that the advocacy for same-sex marriage shifts its rationale and prompts the need to consider different models of the family—even though this is not prominently stated in their advocacy for equality. Same-sex union advocates criticize the procreation argument made by their opponents, but then, seeing the difficulties that exist in the “equality argument, they attempt to demonstrate that same-sex couples are in fact capable of having children (presumably either through a prior union with an opposite-sex partner not their same-sex “spouse,” through adoption, or through parental surrogacy). As a result, the equality argument that same-sex advocates makes necessarily fails.

But it is absolutely essential to take stock of the indisputable about the physical nature of the human being and its bearing on marriage. A homosexual man and a heterosexual man are equally presumed capable of inseminating any woman, and a lesbian and a heterosexual woman are equally presumed capable of being inseminated by any man. But no man, heterosexual or homosexual, can inseminate any other man. Nor can any woman, heterosexual or homosexual, inseminate another woman without the assistance of artificial means. Judicial fiat cannot alter this biological reality of human nature. Any man can deposit his semen and sperm in another man, but this does not lead to fertilization of human eggs and procreation. No woman can produce semen and inject it into another woman thereby leading to the fertilization of the second woman’s egg. The procreation argument against same-sex unions works not because of legal fiction or artifice but because of biological reality that is inextricably a part of human nature that has been a part of the traditional definition of marriage that the majority in Goodridge cannot dispute. They simply ignored it, and ignorance of reality does not make for wise and sound law. The only way to overcome this obstacle to the same-sex marriage campaign is to put aside the natural and historical definition of marriage and manufacture a new one that suits the needs of same-sex marriage advocates. This is, in fact, what Goodridge has done.

But a crucial question pursues the issue of equality in the wake of Goodridge. If the homosexual partnership is one model of marriage, why not the polygamist model? Why not the model that disregards the age of the marriage partners regardless of their sex? Why not the model that dismisses the degree of consanguinity between the male and the female partner? Why not have any relationship serve as a model of marriage? Ultimately, the claim for same-sex marriage rests on a highly subjective individual autonomy fortified by Casey that wants the relationship to be a marriage rather than objective reasoned judgment.

But if the individual autonomy that fuels the drive for same sex marriage is protected by a claim of “equality,” then it will follow that the exercise of individual autonomy desiring other forms of marriage and family life must also be protected by “equality” as it is defined by the problematic extensions of Casey and Lawrence that are the legal justification for Goodridge. Otherwise, other segments of the population will be denied “equality” when their models of marriage are ignored by the state and its juridical mechanisms. Surely what is essential to the “equality” of one category of persons must be essential to the “equality” of other categories.

Two points need to be made here. The first is that the equality argument of the Goodridge majority makes an invalid assumption that the traditional laws regulating marriage as the union of one man and one woman are discriminatory and treat homosexual people in an unequal way that is legally impermissible. They do not, for they apply equally to all persons regardless of their sexual orientation. However, this does not satisfy some renowned advocates who have championed the “equality” argument for same-sex marriage.

Here we need to consider to the extensive work of Professor William Eskridge who has long been identified with the equality argument on behalf of same sex unions. He has authored two books on the subject: The Case for Same-Sex Marriage and Equality Practice: Civil Unions and the Future of Gay Rights. His first book begins with the assertion that same-sex marriage is good not just for the couple but for American society in that it “civilizes” both. One justification offered to support this contention is that homosexuals are “forced” into a subculture that makes them promiscuous leading to negative consequences including sexually transmitted infections and disease. However, the author overlooks the fact that so-called “straight” people, i.e., heterosexual, also can be promiscuous and, in some cases, have been infected with sexually transmitted disease passed from male to female or from female to male. To argue that homosexuals are forced into promiscuity undermines his argument for a committed relationship like heterosexual partners, for they, too, can be licentious. There is nothing to stop a heterosexual couple or a same-sex couple from any relationship including one of commitment where promiscuity is not practiced—but, again, their relationship does not a marriage make.

Eskridge concedes that homosexual persons are not an ethnic or racial group. However, he does suggest that there is a parallel between homosexual persons and ethnic and racial groups who have suffered various kinds of civil rights discriminations such as housing, employment, property rights, and voting. But as I have already stated, the nature of one’s sexual orientation is not an issue regarding any of these issues in the same way as it has for members of racial or ethnic minorities. He may think that homosexual couples who have a sexual relationship have been denied the right to rent an apartment from a landlord who objects to their sexual activity; yet, there are also instances in which landlords have objected to renting apartments to non-married opposite-sex couples who also have a sexual relationship.

As he begins his analysis of the principal case that he argues supports his argument, i.e., Loving v. Virginia, he proffers an interesting suggestion about an “intolerable” situation. As he posits: “Gay people constitute virtually the only group in America whose members are not permitted to marry the partner they love.” This assertion is assuredly not true—for, as I have and will point out, in spite of love, other prohibitions such as degrees of consanguinity, age, and the fact that one is already married prohibit persons from “marrying the partner they love.” Inevitably, Professor Eskridge must concede, as he later does, that there are others who are also prohibited from marrying. As already pointed out, there are many people who cannot “marry the partner they love” because of degrees of relationship, age, illness or disease, and existing marital status, i.e., they are already “married” to someone else whom they may not love as much or love at all.

He posits that the “most important argument” for his position is “an argument of formal equality: Gay couples should have the same rights that straight couples do.” As I have already pointed out several times, they do have the same rights, with one notable exception that has been forbidden to everyone else including heterosexual persons: they cannot marry a partner of the same sex. But, Professor Eskridge further protests by asserting that, “Without the right to marry, gay Americans are second-class citizens.” The marriage issue, from his perspective, is the one area where they are “second class.” As pointed out before, they, in fact, are not denied the opportunity to marry, but they are, like all others, prohibited from marrying certain persons because of a variety of reasons including but not limited to sharing the same sex. Therefore, the interesting argument regarding what makes them “second class” dissolves. In his argument, Eskridge posits that, “States insistent on heterosexuality in marriage is a denial of formal equality for gay and lesbian citizens.” However, he subsequently offers another concession that will undermine this “equality” argument that homosexuals are the only group discriminated against on marriage grounds, for he has acknowledged that same-sex marriage will “generate new inequalities” by devaluing “cohabiting relationships of all sorts and the lives of people not desiring to form long-term committed relationships.”

But the equality argument fails on other grounds as well—the empirical basis. As Episcopalian bishop V. Gene Robinson has demonstrated in the course of his interesting life, he, too, was able to marry a woman of age and not of a prohibited degree of consanguinity like any other man. He, too, was able to father several children (just like heterosexual men) before he divorced his wife to enter a relationship with his same-sex partner. Robinson sexually complemented his wife in the unitive and the procreative acts of marriage like all other partners to heterosexual unions known as marriage. But, he cannot complement his same-sex partner in any substantively similar manner as he did his wife, nor can any man or any woman who complements their respective opposite-sex spouse also complement a same-sex partner. This is not because I say so, or because some religion teaches so, or because convention and tradition hold so. It is because the science of human anatomy and the functions of the male and the female organ used in any sexual relationship say so.

Thus, when Professor Eskridge asserts that same-sex marriage is prohibited in the same way interracial marriages were prior to Loving v. Virginia, he is mistaken. The basic flaw in his reasoning is this: interracial sex between a man of one race and a woman of another race (as was the case of Mr. and Mrs. Loving) is not analogous to the sexual liaison between two men or between two women. Therefore, the prohibition is not based on the same grounds: in Loving it was race. The color of skin does not affect the complementarity of the male-female relationship; however, the pairing of two persons who share the male or the female sex does because there is no biological complementarity that is essential to the survival of the human race and that is and has been vital to institution of marriage. The sexual pairing of a man and a woman can produce a new generation; the pairing of two males or two females cannot. The pairing of Mildred and Richard Loving could produce a new generation of Lovings—as their marriage did; the pairing of Bishop Robinson and Mr. Mark Andrew, his same-sex partner, cannot. The state law that led to Loving did not deny the physical reality of the male-female relationship as do the recent juridical decisions of Massachusetts and California in “equating” the male-male relationship and the female-female relationship to the male-female bond.

In the proliferation of the rhetoric promoting the “equality” and “dignity” of same-sex couples, the Goodridge majority offered little in the way of explaining what equality means and why same-sex couples were denied “equality” by the restriction of marriage to opposite-sex couples. It is pertinent to note here that the Massachusetts Constitution parallels the equality language of the Declaration of Independence by stating that “All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness.” But one must be hard pressed to say that this guarantee about equality contained in the Massachusetts Constitution necessitates the establishment of a right for same-sex couples to marry. Were it otherwise, the application of this equality argument and the rationale of the Massachusetts court can be extended to any group and any combination of people who seek the recognition and benefits of marriage as I have previously noted. Now that would be equality in that any group of persons, perhaps guided by the Casey dicta, could determine what relationship needs to be recognized for “equality” to exist for them but not necessarily for anyone else.

In point of fact, all of society needs to take stock of the fact that the denial of same-sex marriage equally affects and equally applies to all persons regardless of their sexual orientation as either heterosexual or homosexual. The prohibition against same-sex unions applies equally to all men and to women without discrimination against the sex (gender) or the sexual orientation of those whose circumstances are under review by courts. However, this is a point that advocates for same-sex unions fail to see, or, if they see it, they refuse to concede.

The second point that I need to make is this: Goodridge assumes that the laws which have traditionally precluded same-sex marriage intrude into “the protected spheres of private life.” They do not, for the plaintiffs were not seeking judicial protection of privacy; they were vigorously pursuing public acceptance and recognition of their same-sex relationship. As Justice Spina stated in his dissent,

The court asserts that the Massachusetts Declaration of Rights serves to guard against government intrusion into each individual’s sphere of privacy…  Similarly, the Supreme Court has called for increased due process protection when individual privacy and intimacy are threatened by unnecessary government imposition.  See, e.g., Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (private nature of sexual behavior implicates increased due process protection). The statute in question does not seek to regulate intimate activity within an intimate relationship, but merely gives formal recognition to a particular marriage. The State has respected the private lives of the plaintiffs, and has done nothing to intrude in the relationships that each of the plaintiff couples enjoy.  Cf. Lawrence v. Texas, supra at 2484  (case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter’).  Ironically, by extending the marriage laws to same-sex couples the court has turned substantive due process on its head and used it to interject government into the plaintiffs’ lives.

And this is what the court’s majority said ought not to be done, i.e., to have the State intrude into private life. Justice Cordy in his dissent carried Justice Spina’s critique further by stating,

It does not intrude on any right that the plaintiffs have to privacy in their choices regarding procreation, an intimate partner or sexual relations. [Here in a footnote Justice Cordy contrasts Lawrence v. Texas ‘in which the United States Supreme Court struck down the Texas criminal sodomy statute because it constituted State intrusion on some of these very choices.’] The plaintiffs’ right to privacy in such matters does not require that the State officially endorse their choices in order for the right to be constitutionally vindicated.

With the issuance of Lawrence, it would appear that consenting adults can pretty much do sexually whatever they wish to do in private as long as it is neither lethal nor injurious. The focus of concern in Lawrence was the need to preclude the state from entering into one’s home, especially one’s bedroom. But it is vital to understand that state marriage laws simply do not intrude into private matters because they involve a public institution that is the subject of protection and regulation by the state and its juridical apparatus.

Of course, same-sex marriage advocates needed to begin their campaign with the privacy claim; however, once Lawrence was decided, they could easily abandon the primacy of privacy in order to seek and secure public recognition of same-sex unions and the conferral of state sponsored or state protected benefits. Privacy was not the issue at stake in Goodridge as it was in Lawrence. But Goodridge probably could not have been decided without Lawrence first paving the way. Nevertheless, what was sought and granted by the Goodridge majority was protection not of a private matter but a public acknowledgment of something deserving sustenance by the res publicae.

With regard to this last point, the majority of the Goodridge court attempted to subdue the revolutionary nature of their opinion by stating that “for all the joy and solemnity that normally attend marriage, [the statute] governing entrance to marriage, is a licensing law.” If that is the case, the license that was granted by the Goodridge majority enabled persons to do that which had been previously forbidden under the “licensing” statute since the earliest recognition of marriage law that was adopted by the state in the Anglo-American legal tradition asserting that a marriage was between and man and a woman who had given their respective consents.

Statutes involving marriage may well be licensing laws in some regards, but the licenses given signify publicly and protect a fundamental relationship that is at the heart of human nature and human posterity and serves the benefit of the common good of humanity. Nonetheless, the Goodridge majority seized the opportunity to inject into the state’s licensing authority an exaggerated understanding of liberty and equality that reconfigured the fundamental marital relation by asserting that the dual freedoms [the freedom from “unwarranted government intrusion into protected spheres of life” and the freedom to “partake in benefits created by the State for the common good”] required conferral of marriage on same-sex couples. The Goodridge majority used these two dimensions of freedom to confect the thesis that the fundamental liberty and equality of persons and their due process rights include protection of life issues involving: whether and whom to marry; how to express sexual intimacy; and whether and how to establish a family. Noting the equality that must protect the liberty of people to choose with whom they desire to be in a relationship recognized by the state, the majority restricted the freedom from and freedom to only to couples, regardless of whether they were opposite-sex or same-sex, and not to other relationships of persons who might also claim the same objectives stipulated by same-sex marriage advocacy.

It becomes clear that the objective of the Goodridge majority was to make marriage an institution of the purely positivist law. As the Goodridge majority avowed: “Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies:  a wholly secular institution.” While the traditional marriage laws were promulgated by a secular authority, it must also be recalled that since pre-Colonial days in Massachusetts the secular institution was based solely on the union of one man and one woman.

If the majority had not done enough to upset matters, it contributed an additional problem by generating an ambiguity about this “secular institution” by stating, “In a real sense, there are three partners to every civil marriage:  two willing spouses and an approving State.” If that is indeed the case and there are at least three partners to any marriage, why not four? Why not five? Why not as many as can fit in the house or apartment? Surely the secular institution created by government need not be restrained by tradition, reason, or anything else other than its own caprice? Surely the liberty and equality claims of others cannot be compromised? But if the Goodridge majority was concerned with just two parties at the outset, but then declares that there are three, it should be simple to extend marriage licensing to any group of persons seeking the aforementioned freedoms from and to.

The difficulties with this case do not stop here. The Goodridge majority decision raises another problem that was not addressed by the court when it inserted the state as a partner to marriages. If the state is a partner to the marital relationship, this would undermine the first principle of freedom (the freedom from) identified by the court, i.e., that marriage concerns “the protected spheres of private life.” This challenge to their rationale for altering the secular institution of marriage does not appear to have entered an earlier concern expressed by the majority, thereby reinforcing the thought that politics, including judicial decision-making, does make for strange bedfellows.

Attention needs to be focused on another point raised by the Goodridge majority when they quoted from a 1912 advisory opinion (permitted in Massachusetts) of the Supreme Judicial Court: “central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations. ‘Absolute equality before the law is a fundamental principle of our own Constitution.’” I have taken the liberty of italicizing the language “in similar situations” because the Goodridge majority quickly passed over the significance and relevance to marriage claims contained in this phrase. Are heterosexual couples and same-sex couples really “in similar situations”? The majority, in fact, avoids responding to this issue. The pressing need to address what they erroneously assume takes on further importance when one considers that the Goodridge majority noted that until its 2003 decision was issued, marriage in Massachusetts was understood to be the legal union of a man and woman. It is hard to imagine that the court in 1912 would have thought that heterosexual couples and same-sex couples are “in similar situations.” Given the historical meaning and definition of marriage that goes back hundreds of years to the late twelfth century in England, it is clear that same-sex couples’ relationships cannot be viewed “in similar situations” as opposite-sex couples’ relationships. But, as I have said, the Goodridge majority avoids this crucial understanding about the dicta taken from the 1912 advisory opinion.

It becomes unambiguous that the majority in Goodridge, by its own admission, engaged in a bold, perhaps unprecedented maneuver to make law in a fashion that departs dramatically from the role of judges to interpret law and apply it to specific cases. As the majority stated, it set out to “construe civil marriage” and the definition it construed is this: marriage is “the voluntary union of two persons as spouses, to the exclusion of all others.” This construction, as pointed out, was not consistent with past constructions. Nevertheless, the majority was satisfied that their “reformulation” of the meaning of marriage “redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships”, yet, curiously, the majority also state that their reformulation “leaves intact the Legislature’s broad discretion to regulate marriage.” Given the history of what marriage in Massachusetts was prior to this watershed decision, it is implausible to suggest as the court does here that the legislature would have any discretion to regulate marriage if its regulation conflicted with the perspectives of at least four members of the Supreme Judicial Court.