Legislative-Judicial Relations on Contested Issues: Taxes and Same-Sex Marriage

By DeMary, Michele | Judicature, January/February 2006 | Go to article overview

Legislative-Judicial Relations on Contested Issues: Taxes and Same-Sex Marriage


DeMary, Michele, Judicature


The Supreme Judicial Court of Massachusetts (SJC) played an unexpectedly prominent role in the most recent presidential election. In 2003 and 2004 the court issued opinions recognizing the right under the Massachusetts Constitution of same-sex couples to marry. Conservative critics from across the nation responded. Important public figures within the state also differed with the high court on the outcome of this case, and political rhetoric in Massachusetts was at times heated. However, two years after the first same-sex marriages were legally performed in Massachusetts, judicial-legislative relations in the state have remained largely unchanged.

A look at Massachusetts' neighbor to the north, however, shows a different reaction to a controversial decision of its state supreme court. In 1997 the New Hampshire Supreme Court declared in Claremont School District v. Governor (Claremont II)1 that the state's system of funding public schools was unconstitutional. This decision was heavily criticized, especially as the most likely solution to the educational funding dilemma would be a statewide tax, a political anathema in New Hampshire. Serious measures were taken by the state's legislature in response.

Why was there such a difference? How could the decision of the SJC result in almost no challenges to its authority while the New Hampshire decision resulted in numerous challenges to the independence of the state's high court? This article proposes four possible factors to explain the two responses. While further research into other states will be needed to determine which factor, or which combination of factors, is most influential, it is likely that the differences in historical context, issues, and political environment play an important role. In addition, the different institutional arrangements of the two legislatures, New Hampshire operating with a citizen legislature and Massachusetts with a professional legislature, may provide further insight into the two responses. Before presenting this argument, we must take a more in-depth look at these two cases.2

New Hampshire and taxes

It was no accident that presidential candidate George H.W. Bush uttered one of his most famous promises in the 1988 presidential primary race in the State of New Hampshire. "Read my lips; no new taxes," was a particularly appropriate stance for one hoping to win the New Hampshire primary. This state's residents had long taken pride in the fact that their state has no statewide income, sales, or property tax. It was this absence of a statewide tax base that caused Claremont and four other New Hampshire towns to charge that the state's system of funding education violated the state's constitution. The justices of the Supreme Court agreed, and in 1993 issued the first of a long train of decisions on this question in a case that has come to be known as Claremont I.3 The justices determined that Article 83 of the New Hampshire Constitution provides a constitutional guarantee of an adequate education.

The case was remanded to the trial court where it was determined that an adequate education was being provided by local property taxes through which New Hampshire funded 90 percent of its local educational services. The case returned to the Supreme Court, which overruled the lower court in Claremont II. In a 4-1 decision, the Court declared "the property tax levied to fund education is, by virtue of the State's duty to provide a constitutionally adequate public education a State tax and as such is disproportionate and unreasonable in violation of...the New Hampshire Constitution." In his opinion for the court Chief Justice David Brock also determined that the right to an education is a fundamental right under the state's constitution, providing it with a high level of constitutional protection.

The Court stopped here, leaving the development of a constitutional plan for funding the state's schools to the other two branches. …

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Legislative-Judicial Relations on Contested Issues: Taxes and Same-Sex Marriage
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