http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/11/19/MARRIAGE.TMP Massachusetts court allows gay marriage
Bush says he will lead fight to ban unions
Washington -- The Massachusetts Supreme Judicial Court ruled 4-3 Tuesday that gays and lesbians have a right to full civil marriage, igniting a ferocious political battle over the most controversial social issue of contemporary America.
Fallout from the historic ruling is certain to affect the contest for the presidency -- where social conservatives have made support for a federal constitutional amendment banning same-sex marriage a litmus test for Republicans -- and trigger legal battles that ultimately will be resolved by the U.S. Supreme Court.
President Bush quickly issued a statement from London signaling that he would lead the fight for a constitutional amendment banning gay marriage, a step he had hesitated to take until now.
"Marriage is a sacred institution between a man and a woman," Bush said. "Today's decision ... violates this important principle. I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage."
In a strongly worded ruling that gay advocates said left no room for such alternatives as civil unions or domestic partnership laws, the court gave the Massachusetts state Legislature 180 days to amend its marriage laws to include same-sex couples.
Massachusetts Gov. Mitt Romney, a Republican, called for amending the Massachusetts Constitution to overturn the decision, a measure that has been endorsed by the speaker of the state assembly.
Writing for the majority, Chief Justice Margaret Marshall declared that for same-sex couples, "history must yield to a more fully developed understanding of the invidious quality of the discrimination,'' citing the nation's first decision to lift the ban on interracial marriage by the California Supreme Court in 1948.
"The Massachusetts Constitution affirms the dignity and equality of all individuals," the majority wrote. "It forbids the creation of second-class citizens."
The state, the majority held, "failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."
Supreme Court ruling
The long-delayed ruling, expected since last summer, made frequent reference to the U.S. Supreme Court's decision in June striking down state sodomy laws.
Holding that denying marriage to gay and lesbians violated due process and equal protection rights under the state constitution, the decision emphasized that religious and cultural views, however deeply felt, have no bearing on the civil right of marriage conferred by government and the hundreds of legal benefits and obligations it construes.
The court specifically noted Canada's recent granting of full-fledged marriage rights to gay couples, saying, "We concur with this remedy."
Gay rights advocates argued the court went much further than the Vermont high court in 1999, when it allowed the state's Legislature to forge a compromise civil union that mimics every aspect of marriage between gay and lesbian couples but stops short of calling it that.
"The court was quite clear today that civil marriage in Massachusetts will happen," said Winnie Stachelberg, political director of the Human Rights Campaign, the nation's largest gay lobbying group.
According to Stachelberg, the state Legislature does not have to act to amend the marriage laws, because the court's decision is definitive. She said the only way the Massachusetts Legislature could overturn the ruling would be to call a constitutional convention, which could only happen in 2006 at the earliest.
Mary Bonauto, the Gay and Lesbian Advocates and Defenders attorney representing the seven Massachusetts plaintiffs, agreed, saying the Legislature's task now would be to change marriage laws to conform to the ruling.
If that reading is correct, then the decision puts Congress and the White House squarely in the middle of the premier civil rights question of the day, and Bush's statement left no doubt about where he stands.
His statement Tuesday mirrors his comments in late July that administration lawyers were looking for a way to "codify" marriage as between one man and one woman and strongly implied he was merely awaiting the Massachusetts decision to determine how to proceed.
The ruling "now makes absolutely crystal clear that the only way to stop this and prevent its exportation to the rest of the country is to amend the constitution,'' said Tony Perkins, president of the Family Research Council, a leading religious conservative group.
A Federal Marriage Amendment has been introduced in Congress, where passage would require approval by two-thirds of the House and Senate and three-quarters of the state legislatures, a daunting hurdle achieved only 17 times in U.S. history.
"This becomes a major political issue for the up-coming election cycle if not the issue," Perkins said.
Perkins said he had discussed the question with Bush and believed the president would support a constitutional amendment banning gay marriage.
Some gay Republicans who helped Bush reach out to gays in the last election have warned the White House that such a step would instantly cost Bush their support and turn gays unalterably against the Republican Party.
Most oppose gay marriage
But a comprehensive new poll on American attitudes about homosexuality released Tuesday by the Pew Research Center found that public opposition to gay marriage has grown since last summer, when the U.S. Supreme Court opened the door to assaults on all laws discriminating against gays and lesbians when it struck down a Texas sodomy law. The poll found 59 percent of the public opposed to gay marriage, up from 53 percent in July, with 32 percent in favor.
Senate minority leader Tom Daschle, D-S.D., denounced the Massachusetts decision. The leading Democratic presidential candidates stated their support for equal rights for gay couples but did not back gay marriage. Only Al Sharpton, Carol Moseley Braun and Dennis Kucinich, all trailing at the back of the pack, support same-sex marriage.
Daschle applauded the 1996 Defense of Marriage Act, which passed on an overwhelming 85-14 bipartisan vote in the Senate and was signed by President Bill Clinton. DOMA, as it is known, defines marriage as between a man and a woman for all federal purposes such as tax and immigration law.
But Sen. John Cornyn, R-Texas, who is leading the move in the Senate for a constitutional amendment, said that DOMA was "in peril" and that "we have no choice but to confront that threat."
California Democratic Sens. Barbara Boxer and Dianne Feinstein voted against DOMA. Feinstein and Boxer said Tuesday that marriage laws were firmly in the realm of the states and should remain so.
Patrick Guerriero, executive director of the Log Cabin Republicans, a gay GOP group, is urging "all our friends and allies'' to wait until the Massachusetts Legislature acts before "taking a crayon to the U.S. constitution," he said.
Guerriero warned that a fight over a constitutional amendment would "take up a lot of oxygen in the re-election campaign ... and lead to difficulties with swing voters and independent-minded Americans who don't like a creepy social agenda at center of the national debate."
Grover Norquist, a leading GOP strategist with close ties to the White House, said the Massachusetts ruling could "force the House and Senate to try to pass a constitutional amendment. And then it becomes a major issue in the 2004 election, in which case the presidential election is front and center in the culture wars."
'Combustible issue'
Bill Kristol, publisher of the conservative Weekly Standard, said the entrance of gay marriage into the 2004 campaign added "a combustible social and cultural issue" to an election already riven by sharp differences on tax and foreign policy. However, he said, the issue favors Republicans, who can argue they are merely defending the status quo against attacks from the courts.
But Evan Wolfson, executive director of Freedom To Marry, argued that most Americans would support same-sex marriage "now that it moves from a hypothetical blown up by scary right-wing rhetoric to the reality of families being helped and no one being hurt."
Most people "will embrace this just as we have embraced other civil rights strides in American history," he said, "allowing interracial couples to marry, granting women equality in marriage, allowing people to make decisions about whether to use contraception without government interference, and now we will soon have the reality of married gay couples in Massachusetts. Once people get a chance to see the sky doesn't fall, they will support it."
Court action on gay marriage
Here is a list of major court rulings on same-sex marriage:
May 5, 1993: Hawaii's Supreme Court rules that prohibiting same-sex couples from marrying is an apparent violation of the state's constitutional ban on sex discrimination and could be upheld only if justified by a compelling reason.
Dec. 9, 1999: Hawaii's Supreme Court closes the door to gay marriage by ruling that a 1998 amendment to the state constitution prohibiting same-sex marriage took precedence over the courts.
Dec. 20, 1999: Vermont's Supreme Court becomes the first court in the nation to rule that gay and lesbian couples have been denied their constitutional rights and must be granted the same benefits and protections as people in heterosexual marriages. The court stops short of legalizing gay marriage, but it instructs the state Legislature to come up with a way to extend equal protections to same-sex couples.
June 11, 2003: An Ontario court knocks down Canada's legal definition of marriage -- the union of a man and a woman -- declaring prohibitions against homosexual marriage unconstitutional.
June 26, 2003: Calling it an affirmation of gay equality, the U.S. Supreme Court strikes down a Texas sodomy law, proclaiming for the first time that gay Americans have a constitutional right to their private sexual relationships without fear of being punished as criminals.
Nov. 18, 2003: Massachusetts' highest court rules that preventing gay couples from marrying is not permissible under the state's constitution. It gives the state legislature 180 days to find a way to make it possible for gay and lesbian couples to get married. The 4-3 decision marks the first time that a state high court has ruled that same-sex couples are legally entitled to marry.
-- By Charlie Malarkey
Library Researcher
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.