Procedural fairness or structural justice

The Court recognizes the enormous benefits of having the opportunity to avail of the right to marry. Indeed, a valid marriage opens a plethora of advantages which rights of the couple creep in to nearly every aspect of civil partnership and civil life in general. Married people enjoy a host of economic, political and social State sanctions. Not only do the benefits apply to married couples but to their children as well where their status spells “economic security based on their parents’ legally privileged status that is largely inaccessible, or not as readily accessible, to non-marital children” (Department of Revenue v. Mason cited in Goodridge v. Department of Public Health, 2003).

Put differently, the Court understands the demand for equal treatment with respect to marriages among same-sex couples precisely because they shall gain a favorable foothold in society if the extant distinctions between their class as homosexuals and as citizens were to be extricated from the language of the law.

In its place therefore must be more progressive interpretation of common law and State statutes which accords wider latitude for individuals to choose who to marry (2003). However, the trend is to move towards a comprehensive and encompassing definition founded on public policy and public interest recognizing the existing and evolving community standards to include people of the same sex to enter in to the social institution of civil marriage (2003).

Any legislation to the contrary that restricts and bars application for a marriage license to same-sex couples might relive the evil sought to be avoided which has in fact previously been stayed  in the ban of interracial marriages before (2003). Time and again laws passed by legislation are susceptible to judicial review by the courts in order to check if the provisions would unnecessarily and unreasonably curtail the rights of a certain class of individuals where such branding of men and women or any group of individuals should or should not be made in the first place.

Once laws favor a class over the other this automatically triggers the equal protection test calibrated through heightened scrutiny which the majority opinion has chosen to adopt and use in this case. To wit: “Where a statute implicates a fundamental right or uses a suspect classification, we employ ‘strict judicial scrutiny’ and for all other statutes, we employ the ‘rational basis test’” (Lowell v. Kowalski & English v. New England Med Ctr. cited in Goodridge v.

Department of Public Health, 2003). While the brunt of the dissenting opinion argues that the case does not call for such a measure of scrutiny and that a minimum test of rationality in terms of the definition of marriage would suffice, the main opinion recognizes the fact that to remain fixated on the common law meaning of marriage it would therefore fail to extend the rights pertinent to marriage of individuals who choose partners of the same sex to marry (2003).

If the courts were to be limited to the reasonable and acceptable interpretation of the laws then it would not have arrived at the same conclusion in expanding the parameters of marriage. Had the case been decided on a mere minimum test of rationality the ordinary meaning and usage of marriage shall be construed in favor of the dissent and not for a progressive and liberalized definition upheld in the majority opinion.

The current definition of marriage in the country remains over-inclusive because “its regulatory impact touches not only those that are willing to enter the institution but also those that are unwilling and uninterested” (Jaff, 1988) it is at the same time under-inclusive “because it excludes from State certification many of those who are willing and interested” (1988). Accordingly, the respondent State proffers a tripartite argument sticking to the traditional meaning of marriage in order to preserve the status quo under the popular belief that marriage is possible between man and a woman.

Its dissent is backed by a compelling state interest 1) to provide a “favorable setting for procreation, 2) optimal setting for child rearing, 3) preserve scarce State and financial resources” (Goodridge v. Department of Public Health, 2003). Yet the Court belied the claims and struck down the validity of the posited rationale for the continued ban against same-sex marriage reeks of the equal protection infirmity of class distinction on sexual orientation which no longer holds sway, supposedly, at a day and age of enhanced civil liberties towards homosexuals.

The rationale in whole invites the problem of stereotyping and undue classification because there is no scientific, social, economic and political evidence which conclusively support the claim that a distinction is necessary or that a substantial difference exists between homosexuals and heterosexuals. Again, where classifications are pernicious to a certain class without a proper and convincing justification thereof, it should never be made lest it violates the equal protection clauses of the Constitution.

In hindsight, the landmark decision of the Supreme Judicial Court in the instant case has redefined the meaning of the social institution of marriage to tally with the prevailing community standards and jurisprudence on the matter of equal protection and marriages. On the other hand, the dissent is grounded mainly on the premise that the fundamental nature of marriage must be construed the way it has been ever since in the country and for the last several hundred years in other nations (Cordy et al. , “Dissenting Opinion” cited in Goodridge v. Department of Public Health, 2003).

As it were, however, although the “fundamental nature” argument bears heavy persuasive weight since the legal and social definition has always indicated a union only between man and woman, the majority opinion more leaned towards a progressive interpretation of marriage by way of judicial activism by putting a thumb on the scale to balance the interest of the State in terms of creating an equitable and dynamic social institution of marriage as against the rights of the individuals to a choice who to marry under the equal protection clause and the principle of substantive due process (Tribe, 1979).

By exerting that pressure on the scale, the Court went beyond the reasonable extrapolation of the law but moved further by clothing the term of marriage with vestiges of judicial activism to redefine the term marriage to conform to the modern times and thus propitously open the social institution to homosexuals or same-sex couples.


Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d. 941 (2003). Regents of the University of California v. Bakke, 438 U. S. 265 (1978). Jaff, J. (1988). Wedding bell blues: the position of unmarried people in American law. Arizona Law Review 30, 207-218. Tribe, L. H. (1979). Perspectives on Bakke: equal protection, procedural fairness or   structural justice. Harvard Law Review, 92. 4, 864-877.