Mass. Court: Gay Civil Unions Not Enough

Wednesday, February 04, 2004

BOSTON — Massachusetts lawmakers must give gay and lesbian couples full and equal marriage rights, the state's highest court ruled Wednesday.

With its decision to back marriage and not the concept of civil unions, the court set the stage for the nation's first same-sex marriages (search) to take place beginning in mid-May. Plus, the court added fresh fuel to a debate that has split politicians, churches and families around the country.

The court's action clarified what it meant in November when it ruled that the state's marriage laws were unconstitutional. Massachusetts lawmakers wanted to know if the court would have accepted civil unions, a legal designation used by Vermont that conveys many of the benefits of marriage to same-sex couples.

"The history of our nation has demonstrated that separate is seldom, if ever, equal," the four justices who ruled in favor of gay marriage wrote in the advisory opinion. The bill that would allow for civil unions, but falls short of marriage, is makes for "unconstitutional, inferior, and discriminatory status for same-sex couples."

The much-anticipated opinion sets the stage for next Wednesday's constitutional convention, where the Legislature will consider an amendment that would legally define marriage as a union between one man and one woman. Without the opinion, Senate President Robert Travaglini (search) had said the vote would be delayed.

The soonest a constitutional amendment could end up on the ballot would be 2006, meaning that until then the high court's decision will be Massachusetts law no matter what is decided at the constitutional convention.

"We've heard from the court, but not from the people," Gov. Mitt Romney (search) said in a statement. "The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage."

Travaglini said he wanted time to talk with fellow senators before deciding what to do next.

"I want to have everyone stay in an objective and calm state as we plan and define what's the appropriate way to proceed," Travaglini said.

Conservative leaders said they were not surprised by the advisory opinion, and vowed to redouble their efforts to pass the constitutional amendment.

Mary Bonauto (search), an attorney who represented the seven couples who filed the lawsuit, said she anticipated a fierce battle, saying that "no matter what you think about the court's decision, it's always wrong to change the constitution to write discrimination into it."

When it was issued in November, the 4-3 ruling set off a firestorm of protest across the country among politicians, religious leaders and others opposed to providing landmark rights for gay couples to marry.

President Bush (search) immediately denounced the decision and vowed to pursue legislation to protect the traditional definition of marriage. Church leaders in the heavily Roman Catholic state also pressed their parishioners to oppose efforts to allow gays to marry.

And legislators were prepared to vote on a proposed amendment to the state constitution that would seek to make the court's ruling moot by defining as marriage as a union between one man and one woman -- thus expressly making same-sex marriages illegal in Massachusetts.

What the case represented, both sides agree, was a significant new milestone in a year that has seen broad new recognitions of gay rights in America, Canada and abroad, including a June U.S. Supreme Court decision striking a Texas ban on gay sex.

Legal experts, however, said that the long-awaited decision, while clearly stating that it is unconstitutional to bar gay couples from marriage, gave ambiguous instructions to the state Legislature.

Lawmakers remained uncertain if civil unions went far enough to live up to the court's ruling -- or if actual marriages were required.

When a similar decision was issued in Vermont (search) in 1999, the court told the Legislature that it could allow gay couples to marry or create a parallel institution that conveys all the state rights and benefits of marriage. The Legislature chose the second route, leading to the approval of civil unions in that state.

The Massachusetts decision made no mention of an alternative solution, but instead pointed to a recent decision in Ontario, Canada, that changed the common law definition of marriage to include same-sex couples and led to the issuance of marriage licenses there.

The state "has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples," the court wrote. "Barred access to the protections, benefits and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions."

The Massachusetts case began in 2001, when the seven gay couples went to their city and town halls to obtain marriage licenses. All were denied, leading them to sue the state Department of Public Health, which administers the state's marriage laws.

A Suffolk Superior Court judge threw out the case in 2002, ruling that nothing in state law gives gay couples the right to marry. The couples immediately appealed to the Supreme Judicial Court, which heard arguments in March.

The plaintiffs argued that barring them from marrying a partner of the same sex denied them access to an intrinsic human experience and violated basic constitutional rights.

Over the past decade, Massachusetts' high court has expanded the legal parameters of family, ruling that same-sex couples can adopt children and devising child visitation right for a former partner of a lesbian.

Massachusetts has one of the highest concentrations of gay households in the country with at 1.3 percent of the total number of coupled households, according to the 2000 census. In California, 1.4 percent of the coupled households are occupied by same-sex partners. Vermont and New York also registered at 1.3 percent, while in Washington, D.C., the rate is 5.1 percent.

The Associated Press contributed to this report.

[willie]

Why would anyone consider electing a President that came from Massachusetts?

[SurfaceTension]

Ya know, I hope Bush goes balls-out for the amendment - not because I think it's a good idea, but because it would serve as a perfect example to the liberal elite of the problem with bestowing so much power on the Federal government.

This problem arises because the feds now regulate our pensions, personal insurance contracts, on and on. The 10th Amendment to the Constitution (does anyone remember the Constitution?) states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

I searched high & low and can't find anything about the power of marriage being delegated to the Federal Government. Yet, under the guise of "interstate commerce", the feds control and regulate the minutia of our lives, and each day we (especially the more liberal/socialist among us) insist that we place more of our daily lives into the feds domain.

If the Country resembled anything like what it was originally intended to be, this would strictly be a State issue...If Mass wanted it, cool. If Texas didn't, that's cool too. Since we are free to move among the states (and vote for the laws within our current state), we would be free to live in a place that is best for ourselves.

Instead, most everything is dictated from the federal level. OK if you agree with it, an "injustice" if you don't. We reap what we sow.

It is not the business of government to make men virtuous or religious, or to preserve the fool from the consequences of his own folly. Government should be repressive no further than is necessary to secure liberty by protecting the equal rights of each from aggression on the part of others, and the moment governmental prohibitions extend beyond this line they are in danger of defeating the very ends they are intended to serve.
– Henry George

[Tonio]

Surf, I agree with you about the federal government having too much power.

But I don't want to see a constitutional amendment limiting marriage to straight couples. To me, that's a perfect example of government overreaching its authority. From a ideological standpoint, I don't think ANY government, federal or state, has a compelling interest in limiting marriage. As I wrote in the Janet/Justin thread, it's not government's job to enforce someone's idea of morality.

What do you think of the idea of privatizing marriage, which I've also brought up before?

I agree Surface that the government does have too much power now. I think you make a good point, but say one person works in Maryland and Maryland doesn't recognize same sex marriage, so therefore the Maryland employer refuses to give that person the ability to put their same sex partner on their heath insurance? Then what happens?

And, that is just one example, what about health decisions, etc. etc.?

I've stated before that I think it will not be long that same sex marriages are recognized in all states. I think that there is enough law on the books now and that they will succeed in their mission, because the only reason to deny them marriage focuses solely on morals. And as we all know, morals doesn't mean squat in a court of law.

[Pete (Premo)]

Actually I could care less what they do. Let them get married, feed the divorce lawyers and get stuck paying for each others debts, wrangling and fighting, spousal support and everything else. Give them the ability to get "family benefits". The only problem I have with all of it is in the area of adoption. I am (insert deragatory term of your choice here) and think that it is an "alternative" lifestyle and it is not the proper place for a child to be subject to. Draw the curtains and lick, fondle or poke whatever you want, just stop tying to convince me it is "natural" and not try to drag innocent children into it.

[vraiblonde]

Originally posted by Tonio
As I wrote in the Janet/Justin thread, it's not government's job to enforce someone's idea of morality.

Okay, but you're talking about two different things here. One is public nudity, the other is a private relationship.

I have a morality issue with people marrying on the spur of the moment, in an alcoholic haze. Can we make that against the law too? I also think it should be against the law for people to have children they have no intentiion of raising and caring for. Can I get a law prohibiting it?

[Tonio]

Originally posted by vraiblonde
Okay, but you're talking about two different things here. One is public nudity, the other is a private relationship.

Good point. I believe public nudity laws exist because that causes a disturbance, not because nudity offends some people. Ken might know where to find that information.

[Elle]

Originally posted by vraiblonde
I have a morality issue with people marrying on the spur of the moment, in an alcoholic haze. Can we make that against the law too?

Thank god you have to wait 2 days for a valid marriage license here in MD, can you imagine the little chapel on the side of the brass rail???

[Tonio]

Originally posted by tys_mommy
Thank god you have to wait 2 days for a valid marriage license here in MD, can you imagine the little chapel on the side of the brass rail???

Before that was instituted in the '30s, Elkton in Cecil County was famous among New Yorkers as a good spot for quicky marriages.