DISSENTING OPINION OF JUSTICE FRANCIS X. SPINA:
What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts.
. . . The power to regulate marriage lies with the Legislature, not with the judiciary. . . . Today, the court has transformed its role as protector of individual rights into the role of creator of rights. . . .
All individuals, with certain exceptions not relevant here, are free to
marry. Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court. . . . There is no restriction on the right of any plaintiff to enter into marriage. Each is free to marry a willing person of the opposite sex.
In this Commonwealth and in this country, the roots of the institution of marriage are deeply set in history as a civil union between a single man and a single woman. There is no basis for the court to recognize same-sex marriage as a constitutionally protected right.
Courts have authority to recognize rights that are supported by the
Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes.
The Massachusetts Legislature has erected no barrier to marriage that intentionally discriminates against anyone. Within the institution of marriage, anyone is free to marry, with certain exceptions which are not challenged.
Today the court does not fashion a remedy that affords greater protection of a right. Instead, using the rubric of due process"
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