Goodridge et Al. V. Department of Public Health et Al. the Role of Litigation in the Struggle for Same-Sex Marriage

Article excerpt

The year 2003 and 2004 were marked by a wave of events related to gay and lesbian rights throughout the country. First, in June 2003, the U.S. Supreme Court delivered a landmark decision in Lawrence v. Texas by declaring the unconstitutionality of sodomy laws. The decision marked a great victory for gay-rights activists who for decades had battled the issue at the state and national levels. Yet, Lawrence only preceded what some have called one of the most groundbreaking legal decisions regarding gay and lesbian rights in the United States. On November 18, 2003, in Goodridge et al. v. Department of Public Health et al., the Massachusetts Supreme Judicial Court delivered a landmark ruling by stating that gay and lesbian couples could no longer be excluded from civil marriage in the state. The 4-3 opinion recognizing the plaintiffs' argument that barring gays and lesbians from marrying their loved ones was unconstitutional was the first of its kind in the country. As established by the Justices, one-hundred-and-eighty days following the decision, the first same-sex marriages were performed in the state.

Goodridge became a major victory in the more-than-half-a-century-long struggle for rights by gays and lesbians in the United States. The suit was part of a strategically crafted decision by gay-rights advocates to use litigation in pursuing the right for same-sex couples to legally marry. The S.J.C. decision sent shockwaves across the country, and same-sex marriage became part of the national political and social debate. Goodridge has also been responsible for revitalizing a debate among scholars on the role of court decisions in bringing about social reform. Political scientists have long ago come to question the effectiveness of the use of legal strategies by social movements in challenging the status quo and creating lasting social changes.

In regards to the debate on the importance and necessity of the use of litigation as catalyst of social reforms, the arguments of scholars Gerald N. Rosenberg and Michael W. McCann illustrate the diverging views on the issue. Rosenberg has argued that legal mobilization is a futile and ineffective tactic used by reformers, either because law often only creates short-term effects, courts are constrained in creating concrete public policy, or due to the fact that legal tactics block a more collective participation in pushing for change. In reaction to those views, McCann has suggested that the use of law is important in indirectly reforming society. Court decisions, in that sense, even when against social activists' claims, have lasting effects that range from increasing social mobilization towards changing the status quo, to enhancing individuals' awareness of their rights.

In the case of Goodridge, some have come to question what role the decision has and will play in the struggle for same-sex marriage in Massachusetts and at the national level. Thus, this thesis sought to analyze the validity of those scholarly arguments when applied to Goodridge. It examined and tested the diverging theories of Rosenberg and McCann through the analyses of the impacts and role of the use of legal tactics by gay and lesbian activists in the fight for same-sex marriage. The main focus of this research was not just to determine the direct judicial effects per se of the decision (i.e., the actual implementation of public policy) but to determine whether or not Goodridge has had, in Massachusetts and in the rest of the country, some of the extra-judicial effects described by scholars. Thus, the main question becomes what role Goodridge has played in expanding the goal of legal recognition of same-sex relationships nationwide, as well as its role in affecting society in ways other than the direct creation of public policy.

The original version of this paper was divided in six different sections. The first one provided a brief explanation of Rosenberg and McCann's arguments. …

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