Posted on 02/04/2004 11:35:26 AM PST by Wrigley
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.
This would, of course, result in total and utter chaos. Churches would no doubt continue to perform weddings as a religious ceremony, and I know of no basis on which the Massachusetts Supreme Court could stop them from doing so. The chaos would exist in areas such as property and estate law, child custody and support, etc., all of which have as part of their foundation the institution of marriage. Perhaps the chaos that would exist in these areas would result in a popular uprising that would re-establish in Massachusetts the concept of separation of powers, a concept that seems to be lost on the current Massachusetts Supreme Court.
The gays are seeking official government recognition that their lifstyle is acceptable. Visitation rights at hospitals is really insignificant compared to the "marriage" certificate framed and hanging on the wall.
Similar to the Equal Rights Amendment being purely symbolic.
I want to know how the court enforces their laws???
Yes it is. Heterosexuals as well as homosexuals are barred from marrying within their gender. The law says nothing about what kind of sex you like to have, just that men can't marry men and women can't marry women.
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