If ever in American jurisprudence there were a single court decision calculated to spawn a "perfect storm" of still more litigation and major political jostling, it had to be last week's decision by the highest court of Massachusetts to approve same-sex marriage.
The court gave a reluctant Massachusetts legislature just six months to revise the state's marriage laws so that homosexuals and lesbians-and, critics asked, who knows what other combinations? -might then obtain legal marriage licenses.
Predictably, the very first question raised by the gay community that had pressed the issue, as well as by their critics and the media, was whether such Massachusetts marriages would end up being recognized by other states. That is no accident; it's the very issue homosexuals are eager to test in a nationwide barrage of litigation. And that battle will be conducted on the turf of the nation's judiciary, considered more "gay-friendly" than various legislative bodies that are more immediately accountable to voters.
Whether the Massachusetts legislature, led by Republican Gov. Mitt Romney (a Mormon), can find loopholes in the court ruling to delay the six-month deadline remained a key question. Some thought the ruling's final paragraph was a quiet invitation to the legislature to invent some middle ground, by which a more limited form of "civil unions" might be approved but not marriage itself.
The close 4-3 vote from the Massachusetts court could not be blamed on liberal Democrats. Six of the court's seven judges were appointed by Republican governors.
Considering the president was en route to a key visit overseas with Iraq war ally Tony Blair in Britain, the Bush White House was relatively quick to criticize the ruling, saying it violates the important principle that "marriage is a sacred institution between a man and a woman." In a prepared statement, Mr. Bush pledged to "work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage." Does that mean a constitutional amendment? The statement, said a spokesman, would have to suffice for now.
It won't suffice for long. The White House website headlined 11 other topics over the next 24 hours, but didn't consider the marriage issue to be one of the most important. Pro-family leaders will be watching such signals closely. Some Republicans see the homosexual marriage debate as a key wedge issue against Democrats in the 2004 election (see page 44). Others seem embarrassed and want the debate to go away. Most recent polls show voters not only significantly on the side of traditional marriage, but moving increasingly in that direction. A Boston Globe poll, for example, suggested a backlash even last week by Massachusetts voters against their high court's tradition-shattering ruling.