Post Date: November 26, 2003

In particular, Professor Laurence Tribe, a constitutional scholar, has commented in dozens of publications on the intent of the court—an issue currently being debated at the state capitol. “I think that the court could hardly have been clearer about the proposition that the basic definition of marriage has to be broadened for it to meet the requirements of the state constitution,” said Tribe in the Boston Globe. He has also pointed out that it is not unusual for a high court to get ahead of the legislative branch “in areas where there are minorities stigmatized or ostracized by the political majority, and the dynamic is loaded against them.”

In addition to Tribe, Professors Elizabeth Bartholet, a family law expert, and Arthur Miller, a well-known legal analyst, have helped to clarify the ruling. Like Tribe, Bartholet has said that the SJC decision clearly refers to “marriage” and that a legislative remedy allowing only civil unions would be unlikely to satisfy the court.

Speaking in the New York Times, Miller had a slightly different take on the what might be an appropriate legislative response. He argued that the Massachusetts legislature could satisfy the court’s mandate by codifying “a relationship that might not necessarily be called marriage but allows for the recognition of property passage and joint ownership and insurance and even child custody.”

“While our faculty do most of their teaching in the classroom, sometimes events unfold and the world turns to Harvard Law School for guidance on complex legal issues,” said Dean Elena Kagan. “It happened after the 2000 presidential election and the 9/11 terrorist attacks. Now we’re seeing it happen again.”

When the city of Cambridge considered immediately issuing same-sex marriage licenses—before the end of the 180-day waiting period mandated by the court—Assistant Professor David Barron, an expert on municipal government law, commented in the Harvard Crimson. “Under the state constitution the city probably lacks the legal authority at the present time, in my view, to issue a license,” said Barron. The Cambridge City Council has decided against immediately issuing the new marriage licenses.