HLS Profs File Brief in Support of Gay Marriage Ruling

A group of 90 law professors and constitutional scholars from across the country, including 18 from Harvard Law School (HLS), urged the state’s highest court Monday to solidify its November ruling on gay marriage by rejecting a proposed civil union law.

In a friend-of-the-court brief, which was written by Tyler Professor of Constitutional Law Laurence H. Tribe ’62, the group argues that the Nov. 18 decision by the Massachusetts Supreme Judicial Court (SJC) in Goodridge v. Department of Public Health was unambiguous in its conclusion that the state must allow homosexual couples to marry.

“I thought it was important, as did a large number of the best constitutional law scholars and legal historians in the country, to weigh in on whether there really is any ambiguity,” Tribe said. “I thought it was clear that there wasn’t any.”

But the Massachusetts state senate has asked the court to issue an advisory opinion on a potential constitutional amendment that would limit marriage to heterosexual couples but provide similar legal protections to homosexual couples who choose to enter into civil unions.

The brief argues that any “retreat” from the November ruling would “risk gratuitously exposing the SJC to withering critique for having first taken a courageous and principled stand on a matter going to the core of both liberty and equality—but having then turned around and responded equivocally, at best, to the question whether the SJC actually meant what it had so recently said.”

The court invited parties to submit briefs on its initial ruling during the 180-day period before the decision takes effect on May 17.

A total of 16 briefs were filed before the Monday deadline, including one by the Gay & Lesbian Advocates & Defenders, which represented the seven gay couples who sued the state for the right to marry.

Martin S. Lederman, a former Department of Justice attorney who wrote the brief with Tribe, said the two solicited support from the country’s top constitutional law professors and legal historians over the course of several weeks. The deans of Yale and Stanford Law Schools joined several professors from HLS and other top law schools in signing the brief.

HLS Dean Elena Kagan was not among the 90 signatories. She could not be reached for comment yesterday.

In a statement on the HLS website, Tribe said he hopes the brief will make the SJC “sit up and listen,” noting that experts “spanning the ideological spectrum” signed the brief.

The credibility of the court is at risk in this case, Tribe said.

“Any equivocation by the Justices of the SJC in response to the state senate’s request for an advisory opinion about civil union legislation not only would hurt the gay men and lesbians who are counting on the SJC to stick by what it said in November about same-sex marriage but also would hurt the court itself, by undermining its hard-earned reputation for candor and integrity,” he said.

According to a Crimson poll conducted in mid-December, about 77 percent of Harvard undergraduates supported the SJC’s November ruling.

—Staff writer Andrew C. Esensten can be reached at esenst@fas.harvard.edu.