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TitleHow Massachusetts Got Gay Marriage: The Intersection of Popular Opinion, Legislative Action, and Judicial Power
Author(s)Tonja Jacobi
First Page219
AbstractThis Article provides an explanation for how the Massachusetts Supreme Judicial Court managed to initiate same-sex marriage without provoking civil strife. It proposes a dynamic model of judicial and legislative behavior, whereby both institutions respond to and simultaneously influence public opinion. Legislatures and courts are both constrained to act within the bounds of public acceptance, and yet each institution simultaneously shapes public acceptability. In this way, the judiciary and the Legislature are also able to influence on another's actions. The positive political theory developed here illustrates how the Massachusetts Supreme Judicial Court managed public opinion and legislative expectations, and thus enabled gay marriage to be established without a public backlash.

When it considered the possibility of introducing same-sex marriage, the Massachusetts Supreme Judicial Court faced seemingly insurmountable public opposition. So the court used remedial delay, allowing the Legislature an opportunity to act. This did not simply buy the court time; rather it mimicked the actions of the Vermont Supreme Court, and thus raised expectations that civil unions could constitute an acceptable legislative compromise. By raising the specter of same-sex marriage as the default outcome if the Legislature failed to act, the Massachusetts court thus raised the costs of inaction for the Legislature, and prompted a civil unions bill. This "action" in turn changed public opinion; having two institutions of government supporting some form of recognition of the rights of same-sex couples dampened public opposition and lowered the costs for the court to introduce same-sex marriage itself. This article presents a positive political theory (PPT) of this process.