One thing law school is quickly teaching me is how isolated legal thinking is from that of the rest of society. This isn't necessarily a bad thing, but people sometimes forget, usually when it's convenient for them, that this is the case. Take Joanna Grossman in her Findlaw column today:
The Massachusetts Supreme Court's Goodridge opinion was quite clear that it was denouncing the exclusion of gays and lesbians from the institution of marriage itself, not just the denial of the benefits of marriage. The Senate's "separate but equal" response was thus constitutionally insufficient, and rightfully rejected. Still, the ease with which it crafted and agreed upon a civil union law is a testament to the powers of social change: In just four years, a "civil union" has become a familiar, accepted relationship form.
No, it hasn't. What has happened is that a legislature attempting to implement popular opinion as much as it can given tight time constraints has tried to come up with a legislative compromise. Politically, civil unions aren't demonstrably 'acceptable' in Massachusetts, or gay rights activists would have had little problem achieving such a change without the courts, and a clunky marriage amendment wouldn't even be up for debate. Ms. Grossman may think what she wishes about whether this is legally reasonable or not, but to pretend that what is accomplished by highly educated elites well-connected to a system of power (and here I mean attorneys, not homosexuals, before anyone jumps down my throat) represents some kind of democratic 'social change' is deluding oneself. The legislature did what it had to because it was forced by the least democratic of institutions, not because the hearts and minds of the people of Massachusetts had changed.