[narses]

http://www.nytimes.com/2003/11/19/national/19RULI.html?ex=1069822800&en=332372c29cd5f768&ei=5062&partner=GOOGLE

Supreme Court Paved Way for Marriage Ruling With Sodomy Law Decision
By LINDA GREENHOUSE

Published: November 19, 2003

— In its gay rights decision five months ago striking down a Texas criminal sodomy law, the Supreme Court said gay people were entitled to freedom, dignity and "respect for their private lives." It pointedly did not say they were entitled to marry.

In fact, both Justice Anthony M. Kennedy, in his majority opinion for five justices, and Justice Sandra Day O'Connor, in her separate concurring opinion, took pains to demonstrate that overturning a law that sent consenting adults to jail for their private sexual behavior did not imply recognition of same-sex marriage, despite Justice Antonin Scalia's apocalyptic statements to the contrary in an angry dissent proclaiming that all was lost in the culture wars.

The Texas case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter," Justice Kennedy wrote. And Justice O'Connor wrote: "Unlike the moral disapproval of same-sex relations — the asserted state interest in this case — other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."

And yet, despite the majority's disclaimers, it is indisputable that the Supreme Court's decision in Lawrence v. Texas also struck much deeper chords. It was a strikingly inclusive decision that both apologized for the past and, looking to the future, anchored the gay-rights claim at issue in the case firmly in the tradition of human rights at the broadest level.

And it was this background music that suffused the decision Tuesday by the Massachusetts Supreme Judicial Court that same-sex couples have a state constitutional right to the "protections, benefits, and obligations of civil marriage." The second paragraph of Chief Justice Margaret Marshall's majority opinion included this quotation from the Lawrence decision: "Our obligation is to define the liberty of all, not to mandate our own moral code."

"You'd have to be tone deaf not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect," Professor Laurence H. Tribe of Harvard Law School said in an interview. Professor Tribe said that had the Texas case been decided differently — or not at all — "the odds that this cautious, basically conservative state court would have decided the case this way would have been considerably less."

The Massachusetts decision was based on the state's Constitution, which Chief Justice Marshall described as "if anything, more protective of individual liberty and equality than the federal Constitution." She said the Massachusetts Constitution "may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life."

Clearly, the state ruling, Goodridge v. Department of Public Health, was not compelled by the Supreme Court's decision in Lawrence v. Texas and, given its basis in state law, cannot be appealed to the Supreme Court. Whether it will influence other state high courts remains to be seen. A similar case in the New Jersey state courts was dismissed this month at the trial level and is now on appeal.

Yet just as clearly, the Massachusetts decision and the Lawrence ruling were linked in spirit even if not as formal doctrine. The Goodridge decision "is absolutely consistent with and responsive to Lawrence," Suzanne Goldberg, a professor at Rutgers University Law School who represented the two men who challenged the Texas sodomy law in the initial stages of the Lawrence case, said in an interview. Ms. Goldberg added: "It's impossible to overestimate how profoundly Lawrence changed the landscape for gay men and lesbians."

Professor Goldberg said that sodomy laws, even if not often enforced, had the effect of labeling gays as "criminals who deserved unequal treatment." With that argument removed, discriminatory laws have little left to stand on, she said, adding that the Supreme Court "gave state courts not only cover but strength to respond to unequal treatment of lesbians and gay men."

The Massachusetts court considered and rejected the various rationales the state put forward to defend opposition to same-sex marriage. These included providing a "favorable setting for procreation" and child-rearing and defending the institution of marriage.

"It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage," Chief Justice Marshall said. Noting that the plaintiffs in this case "seek only to be married, not to undermine the institution of civil marriage," she said, "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason."

The decision will usher in a new round of litigation. The federal Defense of Marriage Act anticipated this development by providing that no state shall be required to give effect to another state's recognition of same-sex marriage.

On the books since 1996, the law has gone untested in the absence of any state's endorsement of same-sex marriage. With 37 states having adopted laws or constitutional provisions defining marriage as between a man and a woman, same-sex couples with Massachusetts marriage licenses may soon find themselves with the next Supreme Court case in the making.

[narses]

http://www.townhall.com/columnists/calthomas/ct20031118.shtml

Marriage Redefined
Cal Thomas (archive)


November 18, 2003 | Print | Send


It is not as if the ruling by the Massachusetts Supreme Judicial Court permitting the "marriage" of same sex couples came as a surprise. If Massachusetts doesn't care about the sexual practices of some of its politicians, why should it care about what some of its lesser citizens do?

The 4-3 ruling, which orders the state legislature to write a law permitting arrangements similar to what the Vermont Supreme Court approved in 1999 when it allowed "civil unions" the same benefits as marriage, is further evidence that G.K. Chesterton's warning has come true: "The danger when men stop believing in God is not that they'll believe in nothing, but that they'll believe in anything."

Marriage was not invented by the postal service as a convenient way to deliver the mail. It was established by God as the best arrangement for fallen humanity to organize and protect itself and create and rear children. Even secular sociologists have produced studies showing children need a mother and a father in the home.

The first mention of marriage is in Genesis 2:24: ".a man will leave his father and mother and be united to his wife, and they will become one flesh." The Massachusetts Supreme Court ruling, which will be used by gay rights groups to lobby for striking down all laws limiting marriage to heterosexuals, is just the latest example of a society that has abandoned any and all authority outside of itself.

History, logic, theology and even the dictionary have defined marriage as: "the mutual relation of husband and wife; wedlock; the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family" (Merriam-Webster); or "a legally accepted relationship between a woman and a man in which they live as husband and wife" (Cambridge).

These classic examples are being updated to reflect the mood of the times. The online Encarta dictionary defines marriage as a "legal relationship between spouses; a legally recognized relationship, established by a civil or religious ceremony, between two people who intend to live together as sexual and domestic partners." That's a big difference.

What is happening in our culture is an unraveling of all we once considered normal. Anyone who now appeals to virtue, values, ethics or (heaven forbid!) religious faith is labeled an enemy of progress, an intolerant bigot, a homophobe and a "Neanderthal." There is no debate and no discussion. By definition, anyone who opposes "progress" in casting off the chains of religious restrictions on human behavior - which were once considered necessary for the promotion of the general welfare - is a fundamentalist fool, part of a past that brought us witch trials, slavery and back-alley abortions.

But the problem is deeper than the courts. Some of the people who most loudly proclaim the standards by which they want all of us to live have difficulty themselves living up to those standards. A culture is made up of people, but if large numbers of them no longer "hunger and thirst after righteousness" (to invoke a biblical metaphor), neither will their government.

The constitutional way out of this in Massachusetts and in Washington is an amendment that defines marriage as between a man and a woman. Whether sufficient numbers of politicians have the courage to vote for such an amendment in the face of stiff opposition from gay rights advocates and much of the media will soon be determined.

What is most disturbing about this latest affront to tradition and biblical wisdom is that those who would undermine the old have nothing new to offer in its place. It is like morally corrupt ancient Israel when there was no king "and everyone did what was right in his own eyes" (Judges 21:25).

Is that the way we should live? Do we get to vote? Not if the courts play God. Voters can decide in the next election if they want to continue in this direction, or pull the country back from the precipice. Marriage defined should be the social-issue centerpiece of the coming campaign.

[fatima]

http://www.christianitytoday.com/ct/2003/123/32.0.htmlWeblog:
Ontario Court Throws Out Marriage Definition
Plus: A teacher fights to evangelize kids after school, church attacked in India, and other stories from online sources around the world.
Compiled by Ted Olsen | posted 06/11/2003


Christian groups respond to Canadian court's redefining of marriage
The Ontario Superior Court ruled yesterday that Canada's legal definition of marriage—"the voluntary union for life of one man and one woman"—is discriminatory, unconstitutional, and violates homosexuals' human rights guaranteed under the Canadian Charter of Rights and Freedoms.

"The restriction against same-sex marriage is an offense to the dignity of lesbians and gays because it limits the range of relationship options available to them," wrote Justice Harry LaForme. "The result is they are denied the autonomy to choose whether they wish to marry. This in turn conveys the ominous message that they are unworthy of marriage. … I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage."

The new definition of marriage, at least in Ontario, is now "the voluntary union for life of two persons to the exclusion of all others."

It's the latest in a series of Canadian court decisions supporting gay marriage. Last month, the British Columbia Court of Appeal also ruled that the definition of marriage must be changed, but gave the government until July 12, 2004, to do it. A Quebec Superior Court judge issued a similar ruling last fall. But yesterday's ruling in Ontario offered no grace period for the government—homosexual marriages were instantly legal. They took place almost as instantly, as dozens of couples raced to be among the first.

The court decision legalizes two homosexual marriages from January 2001 that occurred at a Metropolitan Community Church in Toronto, but the first new marriage was that of prosecutor Michael Leshner and Michael Stark. "Today is the death of homophobia in the courtroom as we know it," said Leshner.

It's the death of something, agreed Christian groups in Canada and the U.S.

"This change in the common law is not an incremental step