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.
If I were a member of the Mass. state house, I'd be writing up legislation that proclaims that the courts should mind their own business.
What a bunch of arrogant sum'hillarys. :p
Chris Crain, the editor of the Washington Blade has stated that all homosexual activists should fight for the legalization of same-sex marriage as a way of gaining passage of federal anti-discrimination laws that will provide homosexuals with federal protection for their chosen lifestyle.
Crain writes: "...any leader of any gay rights organization who is not prepared to throw the bulk of their efforts right now into the fight for marriage is squandering resources and doesn't deserve the position." (Washington Blade, August, 2003).
Andrew Sullivan, a homosexual activist writing in his book, Virtually Normal, says that once same-sex marriage is legalized, heterosexuals will have to develop a greater "understanding of the need for extramarital outlets between two men than between a man and a woman." He notes: "The truth is, homosexuals are not entirely normal; and to flatten their varied and complicated lives into a single, moralistic model is to miss what is essential and exhilarating about their otherness." (Sullivan, Virtually Normal, pp. 202-203)
Paula Ettelbrick, a law professor and homosexual activist has said: "Being queer is more than setting up house, sleeping with a person of the same gender, and seeking state approval for doing so. … Being queer means pushing the parameters of sex, sexuality, and family; and in the process, transforming the very fabric of society. … We must keep our eyes on the goals of providing true alternatives to marriage and of radically reordering society's view of reality." (partially quoted in "Beyond Gay Marriage," Stanley Kurtz, The Weekly Standard, August 4, 2003)
Evan Wolfson has stated: "Isn't having the law pretend that there is only one family model that works (let alone exists) a lie? … marriage is not just about procreation-indeed is not necessarily about procreation at all." (quoted in "What Marriage Is For," by Maggie Gallagher, The Weekly Standard, August 11, 2003)
Mitchel Raphael, editor of the Canadian homosexual magazine Fab, says: "Ambiguity is a good word for the feeling among gays about marriage. I'd be for marriage if I thought gay people would challenge and change the institution and not buy into the traditional meaning of 'till death do us part' and monogamy forever. We should be Oscar Wildes and not like everyone else watching the play." (quoted in "Now Free To Marry, Canada's Gays Say, 'Do I?'" by Clifford Krauss, The New York Times, August 31, 2003)
1972 Gay Rights Platform Demands: "Repeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit…" [Emphasis added.]
Similar to the Equal Rights Amendment being purely symbolic.
I'm afraid that you are wrong about this - it goes WAY beyond something as trivial as hospital visitation rights. I don't know about Massachusetts, but in a community property state (of which there are a bunch in the South and West) the surviving spouse is entitled to 1/2 of all community property (i.e. all property acquired after marriage). The only exceptions are property that has retained its separate character for the duration of the marriage, gifts/inheritances from family (if the separate character is maintained), and property separated by a pre-nup or a post-nup.
Also, married folks can almost always put their spouses on their health insurance. Think about what THAT could cost us in increased premiums, esp. considering the far higher incidence of AIDS and other STD's among the homosexual population.
Finally, it is not symbolic because now those in favor of polygymous marriages, marriages to children or even animals will likely be approved, using this case and its reasoning as a precedent. This court borrowed from a Canadian decision, and it is far easier for a court in another state (esp. a neighboring state) to borrow from this decision than that of a foreign court.
The floodgates are now open.
By much the same rationale, one would have the right to marry a lamp post.
This sort of thing will reduce this age of Americans to the status of a laughing stock for future generations. It is not the way most people would want their times to be remembered, but absurdity in public action always seems to be more memorable than the constructive. (For example, does any one know what productive Romans were doing at the time Caligula made his horse a Senator?)
William Flax Return Of The Gods Web Site
Does the Spirit of '76 still live?
May it be hung around John Kerry's Neck for all to see.
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