Mass. High Court Rules for Gay Marriage

[Pete C]

Mass. High Court Rules for Gay Marriage
Wed Feb 4,12:46 PM ET


By JENNIFER PETER, Associated Press Writer

BOSTON - The Massachusetts high court ruled Wednesday that only full, equal marriage rights for gay couples — rather than civil unions — are constitutional, clearing the way for the nation's first same-sex marriages in the state as early as May.

"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 requested by the state Senate.


After seven gay couples sued in 2001, the Supreme Judicial Court ruled in November that gay couples have a constitutional right to marry, and gave the Legislature six months to change state laws to make it happen.


But the vague wording of the ruling left lawmakers — and advocates on both sides — uncertain if Vermont-style civil unions would satisfy the court's decision.


The Massachusetts court said any civil unions bill that falls short of marriage would establish an "unconstitutional, inferior, and discriminatory status for same-sex couples."


The state Senate asked for more guidance from the court, whose advisory opinion was made public Wednesday morning when it was read into the Senate record.


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 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 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, 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 (news - web sites) 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 (news - web sites) 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 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 (news - web sites), 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

[Brian Olewnick]

ABC News reports that conservative leaders have been told that Bush will indeed come out in support of a constitutional amendment defining "marriage" as a man/woman union.

Pathetic waste of time, imho, and nothing a government has any reason to be involved with but also, I think, something that's not going to help him politically at all. I'd guess that it won't sit well with the majority of voters who might be characterized as "swing".

[jesus marion joseph]

Is that a pun, Brian?

[MRS]

"Marriage is a sacred institution between a man and a woman," Bush said. "If activist judges insist on re-defining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage."

In my immediate family, there are circuit, federal and appellate judges. The water has finally broken as to our President's spectacular stupidity. In this context an 'activist' assumes a negative mantle, period. What a joke. "Activist judges"

[Brian Olewnick]

Innocent as charged. ;-)

No, I think most US voters who are more or less independent politically subscribe to a "live and let live" workaday philosophy. They may frown on gay marriages etc., but react negatively when someone tries to force the issue.

[jesus marion joseph]

I agree wholeheartedly. It should be as much a non-issue as "don't as don't tell" should have been in the Clinton administration.

[Uli]

I wonder. If they actually try to amend the constitution would that be the first amendment that actually tries to limit individual rights or are there others like that in the constitution?

[jesus marion joseph]

Truthfully, I seriously doubt that such an amendment would actually pass, BWTFDIK? Massachusetts is also considering an amendment to our state constitution. Unfortunately, the advisory opinion from the SJC yesterday seems to have given some initial momentum to the idea. Let's hope cooler heads prevail. There are many times when I think Massachusetts voters are far more "conservative" than the rest of the country thinks we are, and this may be one of those instances.

[jesus marion joseph]

Here's the article from today's Herald concerning the constitutional convention next week. The last two paragrpahs indicate just what a sorry group our state legilators are (IMHO):




Wed lock: SJC secures right of gays to marry
By Elisabeth J. Beardsley
Thursday, February 5, 2004

Marriage licenses will be issued to same-sex couples in Massachusetts this May, after the state's high court slapped down a Senate bill creating lesser civil unions as unconstitutional and discriminatory.

The explosive Supreme Judicial Court decision turned the Beacon Hill debate on its head, sending politicians scrambling in advance of next week's constitutional convention where a proposed gay marriage ban is on the agenda.

Many lawmakers had hoped a civil unions option would allow them to avoid divisive debates and controversial election-year votes.

But in a sharply divided 4-3 ruling, the SJC held that Vermont-style civil unions as outlined in a Senate bill amount to ``invidious discrimination'' by withholding the title of marriage even while conferring the benefits.

``The bill maintains an unconstitutional, inferior, and discriminatory status for same-sex couples,'' SJC Chief Justice Margaret Marshall wrote for the majority. ``The history of our nation has demonstrated that separate is seldom, if ever, equal.''

The SJC's rationale echoed the ``separate but equal is inherently unequal'' principle in the U.S. Supreme Court's 1954 Brown vs. Board of Education decision, which desegregated the nation's schools.

But the high court's dissenters called the civil unions debate a ``squabble over the name,'' and accused the court majority of failing to engage in actual constitutional analysis.

``Today's answer to the Senate's question merely repeats the impassioned rhetoric that has been submitted to us as if it were constitutional law,'' wrote SJC Justice Martha Sosman.

Religious groups would not be required to perform or recognize civil marriages between homosexuals, the court ruling said.

The court's endorsement of full gay marriage rights, which buttresses its Nov. 18 ruling, sparked jubilation among gay activists.

``Equal means equal,'' said Mary Buonato of Gay and Lesbian Advocates and Defenders, which brought the original lawsuit on behalf of seven gay couples who were refused marriage licenses.

But opponents criticized what they called the court's ``demeaning'' dismissal of the chaos the ruling might cause in 38 states and the federal government, which have passed laws banning gay marriage.

``That's a slap in the face and it certainly shows where they come from - they're an activist court,'' said Rep. Philip Travis, a Rehoboth Democrat who's pushing a constitutional amendment to ban gay marriage.

Gov. Mitt Romney, who opposes gay marriage, called on lawmakers to forge ahead with the amendment, pointedly noting that such a ``legitimate'' process would keep the court from having the final say.

``This issue is too important to leave to a one-vote majority of the SJC,'' Romney 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.''

Gay activists said civil rights should never be put to a vote, pointing to the popular outcry when blacks first received equal rights.

Any proposed constitutional amendment would have to be approved by two successive Legislatures before being forwarded to the voters, which could happen at the earliest in November 2006 - by which time hundreds of gay couples will already be married.

Senate President Robert E. Travaglini (D-East Boston), who controls the convention agenda, said he hasn't yet decided what to do.

``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. ``There is a lot of anxiety out there obviously surrounding the issue, but I don't want to have it cloud or distort the discussion.''

Sources said Travaglini is leaning toward allowing the vote to occur.

House leaders, meanwhile, seized on the SJC dissenters, who appealed to lawmakers to develop a ``rational basis'' for denying gay marriage that the court said was lacking from the original case.

House Judiciary Chairman Eugene L. O'Flaherty said he wants fast action on a bill that cites procreation and family stability as reasons for banning gay marriage, while offering full civil unions benefits.

[Chaz Longue]

JMJ -

I wish I was confident a constitutional amendment was out of the question, but I'm not.

I seem to remember getting the impression that polling indicates Americans are increasingly comfortable with gay people, but not with equal rights for gay people.

I've not yet heard an argument against gay marriage which isn't mere sophistry and foolishness. I just don't get it. I heard some idiot using the old reductio ad absurdem this morning and saying next we'd be besieged by GROUPS of people wanting to marry. The debate rarely rises to the grownup level....sad...

db

[jesus marion joseph]

Since the goal of marriage (purportedly) is to homogenize laws pertaining to property rights and encourage stable relationships, I wonder why it would be a problem for any two people of any persuasion to marry. But that's just me.

[Chaz Longue]

Yes - It's weird: those who wish to descriminate say they want to promote "family values". But don't seem to want people to form families that don't resemble ...their families.

You'd think that after the demographic trends of the last few decades, they'd say - welcome to the neighborhood, when's the barbecue?

[jesus marion joseph]

Unfortunately it seems that there is a tendency for people of all political persuasions to avoid assimilation with anyone who is "not like them".

[RBS]

It's a safe bet a constitutional amendment wouldn't pass. I also think that Bush knows that and it's his way of playing to his right wing base.

"Activist judges." What the hell does that mean, anyway????

[Ron Thorne]

I just heard on the evening news that John Kerry is opposed to gay marriage, and only advocates civil unions between same-sex couples, as does Dick Cheney. If I were a Democratic presidential candidate, I think I'd want to seriously distance myself from Dick Cheney on every issue, but Kerry didn't. He threw some flak back at the White House, stating that he held the same position as Vice President Dick Cheney.

I seriously doubt that a constitutional amendment would ever fly, but I'm sure that Dubya will give it a try.

It's all part of the same puritanical mentality that freaks out and threatens religious fundamentalists, and has largely guided the morality of this nation for centuries. It's reprehensible and pathetic.

[crawjo]

If Bush formally backs a constitutional amendment banning gay marriage, he will have lost my support for re-election. Amending the constitution to deny a group of people civil rights is beyond reprehensible. So far all I've seen from Bush's corner is unspecified rhetoric. But if he backs a specific constitutional amendment banning gay marriage, again, I'll say it, he won't get my vote in November. If I can't bring myself to vote for the Democrat, I'll just stay home.

[RBS]

Not only that, Ron. It's totally hypocritical -- Christ said, "Love thy neighbor as thyself." Where do these clowns get off spewing forth Christianity as a way to hate people unlike themselves?

Puritanical bs.

"Oh my God! Janet Jackson showed us her breast!!!!" Never mind that the Super Bowl is a violent, bone-cracking sport, that there are ads every ten seconds for "erectile dysfunction" cheerleaders are jiggling into the camera.

And we get up in arms over a breast. Please.

[jesus marion joseph]

Originally posted by Ron Thorne
I just heard on the evening news that John Kerry is opposed to gay marriage, and only advocates civil unions between same-sex couples, as does Dick Cheney. If I were a Democratic presidential candidate, I think I'd want to seriously distance myself from Dick Cheney on [u]every[u/] issue, but Kerry didn't. He threw some flak back at the White House, stating that he held the same position as Vice President Dick Cheney.

Sounds like Kerry's attempt to look like a "centrist" candidate, instead of a northeastern liberal.

[crawjo]

Also, there is no way a constitutional amendment will pass. The country is about evenly divided on the issue. There are issues that had overwhelming support that couldn't get constitutional amendments. It is a very difficult thing to get the constitution amended. Most constitutional amendments have been to grant people civil rights they were previously denied. The only exception I am aware of is Prohibition, and we know how that turned out. For the President of the United States to formally back an amendment that would federalize the institution of marriage as being between a man and a woman would be a terrible move. I don't care what the Republican base thinks. If Bush does it, he doesn't get my vote. Period.

[Ron Thorne]

Originally posted by crawjo
If Bush formally backs a constitutional amendment banning gay marriage, he will have lost my support for re-election. Amending the constitution to deny a group of people civil rights is beyond reprehensible. So far all I've seen from Bush's corner is unspecified rhetoric. But if he backs a specific constitutional amendment banning gay marriage, again, I'll say it, he won't get my vote in November. If I can't bring myself to vote for the Democrat, I'll just stay home.

I don't have the text in front of me, crawjo, but I specifically heard Bush say that he would support whatever means necessary, including an amendment to the constitution, to maintain the sanctity of marriage between a man and a woman. Remember the moronic slogan ... "it's supposed to be 'Adam and Eve', not 'Adam and Steve'? Nothing much has changed before or since that brilliant rhyme.

Here's one link with some quotes which should give you pause.

I personally hope that Bush backs this goofy-assed idea all the way. Then, perhaps we can have an opportunity for some positive change in this great land of ours.

I wonder if the following is just more rhetoric, or an expression of the president's true commitment to the sacred vows between a man and woman?

"She is a fabulous First Lady. I was a lucky man when she said, yes, I agree to marry you. I love her dearly, and I'm proud of the job she's doing on behalf of all Americans. Just like I love my brother." - Tampa, Florida, Jun. 30, 2003

[crawjo]

Originally posted by Ron Thorne
I don't have the text in front of me, crawjo, but I specifically heard Bush say that he would support whatever means necessary, including an amendment to the constitution, to maintain the sanctity of marriage between and man and a woman. Remember the moronic slogan ... "it's supposed to be 'Adam and Eve', not 'Adam and Steve'? Nothing much has changed before or since that brilliant rhyme.

Here's one link with some quotes which should give you pause.

I personally hope that Bush backs this goofy-assed idea all the way. Then, perhaps we can have an opportunity for some positive change in this great land of ours.

I wonder if the following is just more rhetoric, or an expression of the president's true commitment to the sacred vows between a man and woman?

"She is a fabulous First Lady. I was a lucky man when she said, yes, I agree to marry you. I love her dearly, and I'm proud of the job she's doing on behalf of all Americans. Just like I love my brother." - Tampa, Florida, Jun. 30, 2003

In every statement that I have seen him make, he's left himself just a little bit of wiggle room, by saying things like "if necessary" and so forth. If he comes out in favor of a specific amendment to the constitution, he's lost my vote, unless the amendment is a weak one. If, for instance, all the amendment said was that states were not required to honor the marriages of other states, then I'd just hold my nose, because states already have that right. But if he comes out in favor of an amendment that would make gay marriage in this country illegal, then I can't give him my support any longer. It would simply be too much for me to take. The fact that Kerry is also a weasel on this issue--backing "civil unions" but not marriage--isn't very encouraging, either.

The good news is that if you look at the demographics of it, the people who oppose gay marriage are disproportionately old, while the people in favor of it are disproportionately young. In other words, as my generation becomes older, this will become less of an issue, I predict, and any amendment that could be pushed through now would only be repealed later.

[GoodSpeak]

Once again we see the insatiable need by the self-righteous republican party to dump a lot of medieval nonsense into the US Constitution.

First it was not giving the vote to women.

Then not giving the vote to blacks.

Then abortion.

Then flag burning.

Now marriage.

OK.

So help me out here...weren't these same bastards all up in arms over how the Demon-rats wanted to use the government to control our lives?


Hel-LLOOOO.


Has anybody wondered where the various anti-government militia boyz are on this one? Where the hell are they NOW?


It just never ceases to amaze me how the republicans are guilty, time after incredibly ridiculous time, of the very same things they accuse us Demon-rats of which we have never done.

[crawjo]

From the article Ron linked:

Conservative activists and religious groups, banding together under the name the Arlington Group, gathered in Washington this week to plot strategy. Some participants said they left with a White House commitment to fight for a constitutional amendment.

"We were given direct assurances from the very top," said Kelly Shackelford, president of the Texas-based Free Market Foundation. "There's no doubt. It's our understanding that the president is waiting for a day when there is not a massive news story to do it himself."

Another group, the Alliance Defense Fund based in Scottsdale, Ariz., sent out an e-mail asserting, "This morning, President Bush agreed to join the effort to push for the passage of this amendment."

Tony Perkins, president of the Family Research Council, a leading group of social conservatives, said, "I would not be surprised at all to see the president come out very soon calling on Congress to act." He said he could not speak for Bush but that "it appears that things are falling in line for that to happen."

Grover Norquist, president of Americans for Tax Reform and a conservative who is close to the White House, said a constitutional amendment "is what you'd expect the president to do. ... They are forcing the president's hand — if you say only an amendment can fix this, guess what, you're going to get an amendment."

If this turns out to be true, then my days as a Bush supporter are over. You guys have all seen me write this now, and you can feel free to hold me to it.

[GoodSpeak]

Originally posted by crawjo
If this turns out to be true, then my days as a Bush supporter are over. You guys have all seen me write this now, and you can feel free to hold me to it.

I'm all over it, Crawjo


[BTW, I hate to be an "I told you so", but...I told you so]

[crawjo]

Originally posted by GoodSpeak
Once again we see the insatiable need by the self-righteous republican party to dump a lot of medieval nonsense into the US Constitution.

First it was not giving the vote to women.

Then not giving the vote to blacks.

Then abortion.

Then flag burning.

Now marriage.

OK.

So help me out here...weren't these same bastards all up in arms over how the Demon-rats wanted to use the government to control our lives?


Hel-LLOOOO.


Has anybody wondered where the various anti-government militia boyz are on this one? Where the hell are they NOW?


It just never ceases to amaze me how the republicans are guilty, time after incredibly ridiculous time, of the very same things they accuse us Demon-rats of which we have never done.

Goody, I agree with you. This goes, in my opinion, against what I thought Republicans were supposed to stand for...namely, as you said, less government interference, and, get this, FEDERALISM! The answer to this problem is so fucking simple. Leave it to the states to decide. That's the beauty of the federalist system. The irony of this is that, if an amendment were passed, it couldn't go into effect for a couple of years. By then, a number of gay people will undoubtedly have taken advantage of the Massachusetts ruling to get married. So what, is a Republican president going to go around telling gays their marriages are now invalid? What kind of "family values" is that, anyway?

This stinks, plain and simple.

[GoodSpeak]

Originally posted by crawjo
Goody, I agree with you. This goes, in my opinion, against what I thought Republicans were supposed to stand for...namely, as you said, less government interference, and, get this, FEDERALISM! The answer to this problem is so fucking simple. Leave it to the states to decide. That's the beauty of the federalist system. The irony of this is that, if an amendment were passed, it couldn't go into effect for a couple of years. By then, a number of gay people will undoubtedly have taken advantage of the Massachusetts ruling to get married. So what, is a Republican president going to go around telling gays their marriages are now invalid? What kind of "family values" is that, anyway?

This stinks, plain and simple.

Right-on, Crawjo...you have risen to the occasion.

My hat is off to you. That took some serious guts to admit.




Bravo, my friend.

[Gordon B]

Originally posted by Brian Olewnick
ABC News reports that conservative leaders have been told that Bush will indeed come out in support of a constitutional amendment defining "marriage" as a man/woman union.

Pathetic waste of time, imho, and nothing a government has any reason to be involved with but also, I think, something that's not going to help him politically at all. I'd guess that it won't sit well with the majority of voters who might be characterized as "swing".

If your political opinion if correct, then why would he do it and why would Kerry and even Gephardt, whose daughter is a lesbian, oppose gay marriage?

I googled "gay marriage poll" and found a recent one from NPR.
------------------------------
Dec. 26, 2003 -- Gay marriage and civil unions will be among the most divisive issues of the 2004 presidential election, according to the latest NPR poll.

The study, conducted by Republican pollster Bill McInturff and Democratic pollster Stan Greenberg, found that 56 percent of respondents are opposed to gay marriage, while 30 percent support it.

In an interview with ABC News' Diane Sawyer this month, President Bush said that he would support a constitutional amendment opposing gay marriage. Bush seemed open to the idea of a law that would allow for civil unions.

Poll respondents were split evenly at 45 percent on the idea of a law that would let homosexual couples legally form civil unions providing them "the legal rights of married couples in areas such as health insurance, inheritance, pension coverage and hospital visiting privileges." NPR's Mara Liasson reports.
-----------------------------------------------

The Massachusetts court decision will not be good for gay people if it polarizes the country like Roe v. Wade did. The difference is that a majority of Americans were pro-legalized abortion in 1972 whereas a majority of Americans are against gay marriage today.

Crawjo, if Bush is against gay marriage but in favor of civil unions, is that reason enough to support Kerry?

The constitutional amendment idea will not go far. However, Bush has to support it if he doesn't want to severely alienate the group that supports him most, regular church-goers.

Gay marriage should be up to the elected representatives to vote on our even by referendum but not to the courts. I'm surprised that Brian, being a libertarian, doesn't feel this way.

[Tanager]

Originally posted by Gordon B
Gay marriage should be up to the elected representatives to vote on our even by referendum but not to the courts. I'm surprised that Brian, being a libertarian, doesn't feel this way.

Given that, in the US, marriage is almost entirely a legal arrangement, and one carrying significant benefits (often financial) in many cases, I don't think its availability is, in fact, a matter for vote. It's a civil right conferring legal and financial benefits not available to gays in most cases, and I think it is up the courts to mandate its availability.

If this or that denomination doesn't want to marry gays, that's fine, they're not under any obligation to. But the state itself should not be able to deny the right to marry, I don't give a rat's ass how unpopular it is.

[Brian Olewnick]

Originally posted by Gordon B
Gay marriage should be up to the elected representatives to vote on our even by referendum but not to the courts. I'm surprised that Brian, being a libertarian, doesn't feel this way.

I don't think the government, federal or local, should have anything to do with marriage, period. How one gets it out of that area of oversight, I don't really care. As best I can recall, "marriage" isn't mentioned in the Constitution nor should it be. I don't see that it should be "up to elected representatives" at all.

[Gary Sisco]

The good thing is that Americans don't have the attention span or level of commitment, anymore, to amend the Constitution, which takes a serious, years-long, commitment of time and energy -- all of one's time and energy.

They made it hard to amend specifically to make it difficult to insert idiotic amendments like the one in question here.

The other good thing has already been mentioned. There are too many Americans who are too libertarian in their thinking (talking generic libertarian here, a state of mind, not party or philosophy) and won't go for it. Not everyone in the country is a Xian crackpot. Thank goodness. On cultural issues like these, there is still too large a proportion of the voting population that thinks these kinds of issues are more private than political, and should remain that way.

There hasn't been a serious effort to amend the Constitution since the (unsuccessful) ERA attempt back in the '80s. People like to talk shit, but they don't have the necessary will or commitment to walk it, thankfully. They'd rather just grouse and bitch, the real American pastime.