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Historically, the

Substantive State Constitutional Law, the

In Massachusetts, the state legislature has

Role of Local Officials, and the National

been considering a state constitutional

states themselves

amendment to reverse Goodridge.19 There is

Effect of Individual State Recognition of

have been trusted

Same-Sex Marriages

no reason to believe that the citizens of

to rein in the

Going back to the early 1970s, in cases

Massachusetts or any other state are inca-

challenging state marriage laws under sub-

pable of dealing with their own courts if they

activism of their

stantive doctrines of state constitutions, such

choose to do so. Historically, the states them-

state courts.

as state constitutional equal rights provisions,

selves have been trusted to rein in the

most state courts have rejected arguments for

activism of their state courts. The states cer-

same-sex marriage.14 Since Goodridge, no state

tainly have the power to do so, whether or

not they choose to use it. Voters in 18 states

supreme court has definitively addressed the

so far have decided to amend their state con-

same-sex marriage issue. While advocates of

stitutions to ban the recognition of same-sex

same-sex marriage have won in three state trial

marriages. Constitutional amendments will

courts since Goodridge, they have not won in a

be considered in several more states in the

single state appellate court and have lost in

most state trial courts.15 Although it is still

near future. The states have not previously

asked for, or received, the assistance of feder-

early, Goodridge has not resulted in the deluge

al authorities to deal with their own state

of successful state court litigation for same-sex

courts, state statutes, or state constitutions.

marriage predicted by supporters of the FMA.

It is true that some state constitutional

The strong resistance of state courts to

amendment procedures, as in Massachusetts,

same-sex marriage should not be surprising

are time-consuming and cumbersome. This

since 87 percent of all state court judges are

subject to some form of election.16 Thus, state

makes it possible that, in the interim between

a state court decision ordering the recogni-

courts are accountable to a public that in most

tion of same-sex marriages and a state consti-

jurisdictions still opposes same-sex marriage

tutional amendment reversing that decision,

by fairly large margins. Public opposition has

same-sex marriages will be recognized in an

been strongly reinforced by the passage of con-

individual state. Yet this lag between judicial

stitutional amendments banning gay marriage

action and democratic response is familiar in

in several states, all by wide margins. This pub-

all states where state constitutional amend-

lic resistance will likely make most state courts

ment procedures are time-consuming and

even more reluctant than federal courts to

cumbersome. These states, too, have always

order the recognition of same-sex marriages.

been trusted to handle their own courts and

On the three occasions prior to Goodridge

constitutions. There is no reason to believe

that state courts moved to order the recogni-

that the temporary recognition of same-sex

tion of same-sex marriage in their states under

marriages in a state presents such a special

their own substantive state constitutional doc-

and immediate danger to the nation that it

trines--in Alaska, Hawaii, and Vermont--the

can be handled only by a federal constitu-

democratic processes in those states immedi-

tional amendment.20

ately dealt with the issue by preventing the

imposition of full-fledged gay marriage. In

Even where a state supreme court orders

Hawaii, for example, the state legislature and

the recognition of full-fledged, same-sex mar-

the people themselves voted to amend their

riage in a state, the ruling is limited in its

own constitution to confine decisions about

reach to the state itself. A state court ruling

the definition of marriage to the state legisla-

favoring same-sex marriage could not require

ture.17 In Vermont, the state legislature created

other states to recognize such marriages. That

could be accomplished only by additional

a system of civil unions that extends the bene-

hypothetical rulings by courts of last resort in

fits and responsibilities of marriage (under

other states requiring their own jurisdictions

state law only) to same-sex couples but reserves

marriage itself for opposite-sex couples.18

to recognize such marriages. A pro-gay-mar-

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