Homosexual couples in the Bay State are awaiting the unexpectedly delayed decision of the Massachusetts Supreme Judicial Court as to whether they have a constitutional right to be married.  This question may not have occurred to the Pilgrims at Plymouth Rock, but, as this issue goes to press, it is anybody’s guess how the court will rule.  In his dissent in the U.S. Supreme Court’s remarkable June decision in Lawrence v.Texas (which held that no state could impose criminal penalties for consensual homosexual sodomy), Justice Antonin Scalia suggested that there is now no permissible bar to homosexual marriage, and perhaps he is right.  Lawrence v.Texas more or less declared that no state could make any legal discriminations based on the morality of the majority and could certainly be read to hold that homosexual marriage as well as polygamy, bestiality, and even incest—if consensual—may no longer be prohibited.  How this was accomplished by the Supreme Court will be the stuff of law-review articles for decades, but a fair reading of the majority’s opinion (as Justice Scalia hinted in his dissent) leads to the conclusion that six justices were simply expressing their personal preferences and that constitutional law really had little to do with it.  The Court, explained Scalia, had simply chosen sides in the ongoing culture war and had, as he put it, accepted the “homosexual agenda.”

Part of that agenda is, of course, “gay” marriage, which is not now recognized in any of the 50 states.  (Vermont allows “civil unions,” something short of marriage.)  Is there any means of drawing a line between forbidding a state to interfere with homosexual acts and forbidding it to restrict marriage to heterosexual couples?  Probably not, if we take seriously the opinion of the majority in Lawrence v. Texas, written by Justice Anthony Ken-nedy, which appears to rest on the inherent dignity of homosexuals and their right to express their individuality in their choice of sexual partners.  As Scalia put it, “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”  On the other hand, there is a tradition in Anglo-American law that restricts the institution of marriage to one man and one woman.  Take, for example, the definition in Black’s Law Dictionary, the profession’s leading lexicon, that marriage is the “Legal union of one man and one woman as husband and wife.”  Briefs filed in the Massachusetts case by some religious groups stressed the religious and moral tradition of limiting marriage to men and women, but it is doubtful that will convince the Massachusetts court or any other in today’s overwhelmingly secular society.  The briefs filed by the plaintiffs in the Massachusetts case, who sought to compel Massachusetts officials to allow homosexual unions as marriages, simply declared that it was unfair to deprive the “gay” couples of the legal rights (to spouse’s pensions, to favorable tax treatment, and to inherit when the partner died intestate) that heterosexual marriage assures.  There was virtually no recognition in the plaintiff’s brief that there might be a societal interest in restricting marriage to those capable of natural procreation in order to encourage “traditional” families, which seemed to be the principal argument of the state in support of the distinction.  (The other was that a decision this momentous should be left to the legislature, not to the court.)

The rights of the individual have lately loomed large in Massachusetts, which has generally been on the cutting edge of legal and philosophical thought.  If homosexual marriage is to be upheld anywhere, it could happen there.  It is possible that the Supreme Judicial Court has held off issuing its decision while it ponders the implications of Lawrence v.  Texas.  What this probably means is that the Massachusetts court had been prepared to hold that the state constitution did not guarantee homosexual marriage, and now the Massachusetts justices are pondering whether the federal justices have trumped their decision, as the federal Constitution, which remains the supreme law of the land, now prohibits the criminalization of consensual homosexual sex.  If Justice Scalia is right, they will have to declare that neither Massachusetts (nor any other state) can limit marriage to heterosexual couples, and Black’s Law Dictionary must be revised.  

Perhaps Scalia is wrong, however.  He is assuming that the normal legal rules of following precedent and logical implications are in force.  Since, as Scalia reminds us, what the Supreme Court was really doing in Lawrence had little to do with law, the usual rules may not apply.  Perhaps the Massachusetts court will discern this and simply draw whatever line it pleases.