Massachusetts Judicial Activism Forces Same-Sex Marriage on the Nation

United States Senate Republican Policy Committee ^ | 02.11.03 | Steven J. Duffield

[Coleus]

United States Senate Republican Policy Committee
Jon Kyl, Chairman
347 Russell Senate Office Building
Washington DC 20510
http://rpc.senate.gov

February 11, 2004

Same-Sex Marriages Legal in Massachusetts on May 17

Judicial Activism Forces
Same-Sex Marriage on the Nation

A 4-3 majority of the Supreme Judicial Court of Massachusetts ruled last November in Goodridge v. Massachusetts Dep’t of Health, 798 N.E. 2d 941 (Mass. 2003), that the state’s refusal to issue marriage licenses to same-sex couples violated the state constitution. The court concluded that to insist on traditional marriage was to engage in “invidious” discrimination that the court would not tolerate. The majority, therefore, ruled that marriage must be open to same-sex couples, and delayed the decision for 180 days so that the state legislature could pass laws it “deemed necessary” in light of the decision. (Id. at 969-970.)

In response, the Massachusetts Senate crafted legislation to provide all the protections, benefits, and obligations of marriage to same-sex couples, but created a new parallel institution called “civil unions.” This legislation would preserve traditional marriage while granting virtually all the legal benefits of marriage to same-sex couples. Because of ambiguities in the original Goodridge decision, the state Senate then asked the high court for its constitutional opinion of the proposed law — would civil unions that provided all the rights, duties, obligations, and privileges of marriage to same-sex couples satisfy the court?

The court’s answer, released on February 3, was an emphatic “no.” The same four-judge majority declared it would not tolerate a parallel system of “civil unions” (akin to what exists in Vermont), even though the legal arrangement would be identical to marriage itself. Thus, without any vote of the legislature or the citizens themselves, the core of the marital institution — that it shall be a union of a man and a woman — will be eliminated in Massachusetts. The only remedy the itizens of Massachusetts have for this judicial activism is a constitutional amendment process that can be completed no earlier than 2006. In the meantime, same-sex marriage licenses are expected to be issued in Massachusetts beginning on May 17.

The Massachusetts Court’s Rejection of Traditional Marriage

The Goodridge court last November court held that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.” (798 N.E. 2d at 969.) Particularhighlights from the decision follow (with all emphasis added).

· Barring same-sex civil marriage “works a deep and scarring hardship on a very real segment of the community for no rational reason.” (Id. at 968.)

· Support for traditional marriage “is rooted in persistent prejudices againstpersons who are or who are believed to be) homosexual.” (Id.)

· There is “no rational relationship between the marriage statute and the Commonwealth’s proffered goal of protecting the ‘optimal’ child-rearing unit.” (Id. at 962.)

· “Civil marriage is an evolving paradigm” subject to redefinition by courts. (Id. at 967.)

· Defenders of traditional marriage failed “to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex.” (Id. at 968.)

· “[I]t is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been.” (Id. at 961 n.23.)

· The court’s role is to limit the influence of “historical, cultural, [and] religious … reasons ” that the State may rely upon in attempting to preserve traditional marriage. (Id. at 965 n.29.)

· “The continuous maintenance of this caste-like system is irreconcilable with, indeed, totally repugnant to the State’s strong interest in the welfare of all children and its primary focus, in the context of family law where children are concerned, on ‘the best interests of the child.’” (Id. at 972 (Greaney, J., concurring).)

· To note the long history of traditional marriage is to rely on nothing more than a “mantra of tradition.” (Id. at 973 (Greaney, J., concurring).)

Three justices dissented from the decision, arguing that only the state legislature has the authority to make such a dramatic change to the civil marriage institution, and lamenting the majority’s claim that the State’s opposition to same-sex marriage was irrational.

· “It is surely pertinent to the inquiry to recognize that this proffered change affects not just a load-bearing wall of our social structure but the very cornerstone of that structure.” (Id. at 981 (Sosman, J., dissenting).)

· The majority stripped the elected representatives of their right to evaluate the “consequences of that alteration, [and] to make sure that it can be done safely, without either temporary or lasting damage to the structural integrity of the entire edifice.” (Id. at 982 (Sosman, J., dissenting).)

· The majority justices instead imposed their will under the assumption “that there are no dangers and that it is safe to proceed, … an assumption that is not supported by anything more than the court’s blind faith that it is so.” (Id.)

The Court Insists on “Marriage” and Rejects a Civil Union Option

The Massachusetts Senate’s subsequent drafting of a “civil unions” bill was designed to satisfy the court’s edict while preserving traditional marriage. To ensure its constitutionality, the state Senate requested an advisory opinion from the Massachusetts court. Despite the fact that all legal rights and benefits were provided in the civil unions legislation, the court rejected this alternative legislation, insisting that marriage itself must be redefined. Opinions of Justices to the Senate, SJC 09163 (Feb. 3, 2004), available at www.state.ma.us/courts/opinionstothesenate.pdf .

Highlights from that decision follow.

· The proposed law granting all the rights, benefits, and privileges of marriage through “civil unions” suffers from “defects in rationality.” (Id. at 8.)

· “For no rational reason, the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language can eradicate that stain.” (Id. at 11.)

· “The bill would have the effect of maintaining and fostering a stigma of exclusion that the [Massachusetts] constitution prohibits.” (Id. at 11.)

· Any attempt to preserve traditional marriage is little more than “invidious discrimination.” (Id. at 10.)

· The court indicates that the elimination of civil marriage altogether is constitutionally preferable to the preservation of traditional marriage. (Id. at 11 n.4.) In light of the court’s refusal to entertain a solution that granted all benefits and privileges of marriage through civil unions, Massachusetts is expected to issue marriage licenses to same-sex couples on May 17, 2004.

How the Massachusetts Decision Affects Other States

Same-sex couples from across the United States intend to travel to Massachusetts this summer, marry, and then return to their home states to settle.1 While Massachusetts law appears to prohibit the issuance of marriage licenses to non-resident same-sex couples who intend to return to

1The press reports that Massachusetts wedding planners and town clerks are fielding calls “from as far away as Alaska and Hawaii” from same-sex couples who intend to marry this summer in Massachusetts. Thomas Caywood,“Clerks getting pre-wedding jitters,” Boston Herald, 6 Feb. 2004. See also articles discussing American same-sexcouples marrying in Canada and returning to United States to live. E.g., Sarah Robertson, “Mining the Gold in GayNuptials,”New York Times, 19 Dec. 2003.

states where such “marriages” are illegal, see Mass. G.L. 207 §§ 11-13, the fate of that law is uncertain and press reports make clear that many non-Massachusetts citizens intend to marry there and return to their home states. And Massachusetts same-sex residents who marry there can, of course, later move to other states. In both instances, those same-sex couples may seek recognition of their Massachusetts marriages in other states so that they can receive all the privileges, benefits, and rights that each state gives to married couples.

These Massachusetts marriages will serve as the gateway to additional judicial activism throughout the United States. Some same-sex couples will ally themselves with homosexual-rights activists and challenge both provis ions of federal DOMA (the “Defense of Marriage Act”) — 1) the section that prevents same-sex married couples from accessing federal benefits such as joint tax filing privileges, Social Security spousal payments, and federal employee spousal eligibility, and 2) the section that bolsters the ability of states to refuse recognition of out-of-state same-sex marriages. Other activists will follow the Massachusetts model and demand that state supreme courts redefine marriage by judicial fiat, as plaintiffs have urged recently in New Jersey, Arizona, Indiana, Alaska, Hawaii, and Vermont.

2

As these activist-driven state court cases are filed, they will confront resistance in the 38states that have passed some form of a “State DOMA” that enshrines in state law support fortraditional marriage.

States with “DOMAs”

(constitutional amendments marked with *)

Alabama Georgia Louisiana Nevada* Tennessee

Alaska* Hawaii* Maine North Carolina Texas

Arizona Idaho Michigan North Dakota Utah

Arkansas Illinois Minnesota Ohio Virginia

California Indiana Mississippi Oklahoma Washington

Colorado Iowa Missouri Pennsylvania West Virginia

Delaware Kansas Montana South Carolina

Florida Kentucky Nebraska* South Dakota

Only Alaska, Hawaii, Nebraska, and Nevada have state constitutional amendments that prevent a state supreme court from ruling these “State DOMAs” unconstitutional. And, of course, no State DOMA can prevent a federal court from striking down a state constitutional amendment under federal constitutional standards. (The Nebraska state constitutional amendment has been challenged in federal court and is now awaiting trial. Citizens for Equal Protection, Inc. v. Bruning,290 F. Supp. 2d 1004 (2003).) So far, state court lawsuits are pending in Arizona, Indiana, and

2. See Lewis v. Harris, No. MER-L-03, 2003 WL 2319114 (N.J. Super. L. Nov. 5, 2003) (denying plaintiffs’ demand for marriage license; case now pending appeal);Standhardt v. Superior Court, 77 P.3d 451 (Ariz. App. 2003) (affirming denial of marriage license to plaintiffs; case pending petition to Arizona Supreme Court); Morrison v. Stadler, No. 49D13-0211-PL 001946 (Marion County (Indiana) Super. Ct.) (relief denied to plaintiff; on appeal to Indiana Court of Appeals); Brause v. State, Dep’t of Health, 21 P.3d 357 (Alaska 2001) (affirming dismissal on mootness grounds due to state constitutional amendment barring same-sex marriage recognition); Baehr v. Miike, 1996 WL 694235 (Hawaii Cir. Ct. Dec. 3, 1996) (superseded by constitutional amendment); Baker v. State, 744 A.2d 864 (Vt. 1999) (causing legislature to enact civil unions law).

New Jersey, each of which asks the state courts to rule that the state constitutional equal protection and/or due process provisions require imposition of same-sex marriage. Many same-sex couples do not wish to be litigious, but it is inevitable that many of them will challenge state marriage laws through the regular course of living in their home states. For example, courts in Texas, Iowa, and New York have already confronted cases addressing the reach of Vermont civil unions in the case of “divorces” and the right to sue on behalf of a deceased “spouse.”3 Thus, while the conscious campaign for judicial imposition of same-sex marriage through the courts is well documented,4 that campaign ultimately may pale in comparison to the opportunities for judicial activism that will arise when same-sex couples settle in states where their marriages are not recognized.

Conclusion

President Bush said in his State of the Union address, “If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.” That constitutional process begins when each house of Congress proposes a constitutional amendment and presents it to the American people for ratification through their state legislatures.5

The recent judicial activism in Massachusetts, especially when seen in the context of the ongoing campaign in the courts, would certainly justify the Judiciary Committee holding hearings on the propriety of proposing an appropriate constitutional amendment. Ultimately, the future of marriage should be decided by the American people, not by activist courts.

Staff Contact: Steven J. Duffield, 4-2946

3 The unpublished Texas decision relating to dissolution of a Vermont civil union (which was later reconsidered) is discussed at http://www.washtimes.com/national/20031215-110146-5298r.htm . The Iowa decision regarding the same, also reconsidered, is  discussed at http://desmoinesregister.com/news/stories/c4788993/22995747.html. The full text of the New York decision regarding the right to sue as a surviving spouse if one is in a Vermont civil union is available at http://www.marriagewatch.org/cases/ny/langan/trial/sj_opinion.pdf . 4 See, for example, Senate Republican Policy committee, "The Threat to Marriage from the Courts” (July 29, 2003), available at http://rpc.senate.gov/releases/2003/jd072903.pdf. 5 U.S. Constitution, art. V.

[Coleus]

Rally for Marriage, Boston, Sunday February 8th, 2004, 2:00 PM, State House

Rally for Marriage, Boston Common

[Coleus]

Update on the Joint Session and the marriage debate, Feb. 11, 2004

 

The joint session convened tonight after two votes, one where we failed, the other where we prevailed.  The first vote came on a surprise amendment offered by House Speaker Finneran which stated as follows:

 

"It being the public policy of this Commonwealth to protect the unique relationship of marriage, only the union of one man and one woman shall be valid or recognized as a marriage in Massachusetts.

 

This Article is self-executing, but the General Court may enact laws not inconsistent with anything herein contained to carry out the purpose of this Article, including but not limited to, the enactment of laws establishing civil unions as may be defined by the General Court from time to time."

 

After reviewing this language, the Coalition for Marriage and the Massachusetts Catholic Conference indicated their support.  The amendment failed, 98 yes votes to 100 no votes.  (There are 199 legislators, because of one open Senate seat, but only 198 were present because Rep. Mariano is in the hospital).  Some legislators who voted against it, and who had indicated generally that they supported reaffirming marriage as the union between one man and one woman, indicated they did so out of displeasure with the way the amendment was brought up by surprise. 

 

The second vote came on the proposal by Sens. Travaglini and Lees combining traditional marriage with civil unions for same sex couples.  It was defeated by a vote of 94 yes votes to 104 no votes.  Enough members from both the proponents of traditional marriage and the proponents of gay marriage voted no to avoid what would have been a disastrous win for the Travaglini-Lees proposal. 

 

After the second vote, the joint session was adjourned until the next day, Thursday, Feb. 12, to begin again at noon. 

 

Everything is very fluid.  Keep praying--we all who are lobbying feel God's presence and the power of your prayers.  We were gratified by the presence of so many good citizens from across the Commonwealth who took the time to come and show solidarity with us for preserving marriage.  Pray that we don't run out of time to vote straight up or down on a marriage reaffirmation amendment.  Many legislators want to leave by Friday to start their winter break vacations.

 

We will send out who voted how as soon as we can, although the media will likely carry that information tomorrow.  Stay tuned!

Daniel Avila, Esq.
Associate Director of Policy & Research
Massachusetts Catholic Conference
West End Place, Suite 5
150 Staniford St.
Boston, Massachusetts 02114-2511
(v) 617-367-6060
(f) 617-367-2767
(e) danielavila@macathconf.org
(w) http://www.macathconf.org

[american colleen]

Thanks, Coleus. I just got the bad news that the Travis amendment failed 103 - 96 (I'm in work and can't listen or see it because no radio station or internet venue is carrying it that I can find). There will definitely be an amendment that passes which will include mention of civil unions as well as a definition of marriage... the battle is in how many bennies to include for the civil union people.

Very disheartening.

[Coleus]

Why are the Senate Republicans using the PC term and calling it "same-sex marriage" instead of calling it "homosexual-marriage" as it should be called?

[Salvation]

Meanwhile, in Kalifornia, they are granting marriage licenses for same sex marriages. They cite the non-discrimination clause of the Kalifornia constitution.

Praying that the Massachusetts lawmakers may make the decision that God would have them make.

Meanwhile I say "NO" to same sex (gay) marriage.

[Coleus]

Even some of the councils of the K of C are bad in Massachusetts

 

Satanic Ritual Cancelled By Salem Knights of Columbus

[vetvetdoug]

Massachusetts, the State that instituted slavery in a new nation, burned women at the stake, forced integration upon the rest of the country and rioted when they had to do the same and tried to secede from the United States while the US was at war, is forcing upon the citizens of all the United States their immorality with these actions. All the while, Massachusetts abuses and ignores my Constitutional rights with respect to the Second Amendment.

Massachusetts is a real piece of work. If it hadn't been for Andy Jackson and the South, Massachusetts would have been part of Canada.

[longtermmemmory]

Is there a direct source? There is no reliable source of information. It is all pro-homosexual.

The media is reporting that it is going to be a "clean" amendment with no mention of homosexual unions.

[eternity]

Does anyone have the feeling that we are on the road to Hell?

[longtermmemmory]

would that explain why we are all sitting handbaskets and it is getting hotter?

[Alamo-Girl]

Thanks for the ping!

[nutmeg]

ping!

Please Freepmail me if you want on or off my infrequent Massachusetts ping list.

[johnny7]

Why are the Senate Republicans using the PC term...

Because they got their balls in a lock-box. They're like the cuckold husband of the town whore.

[EdReform]

Bump & Ping

What We Can Do To Help Defeat the "Gay" Agenda

Homosexual Agenda: Categorical Index of Links (Version 1.1)

[Bill S]

This whole thing is totally insane. I feel like I'm in the twilight zone. Here we have 4 whacko judges in one state, effectively, through the U.S. Constitution's "full faith and credit" clause deciding to change the social structure of our country and its nearly 300 million people. I have felt for years that this is the one issue where I would take to the streets to defend our society..
What Gov Romney needs to do is on May 16th issue an executive order suspending indefinitely the issuance of ALL marriiage licenses in the state of Massachusetts.
We can't stand idly by and watch this happen to our country. We are a nation of laws but judges don't make law and we need not follow illegal court decisions. At the very least, these judges need to be impeached immediately.

[little jeremiah]

Homosexual Agenda Ping.

if we don't like the situation now, just wait. Guaranteed it will get worse, unless and until people like us take some kind of action, whatever we can do. If you can come up with ideas, add them to the thread EdReform linked above.

And please, if you haven't yet, read Scott Lively's "The Pink Swastika" - it used to be readable online, and it can br ordered at:

http://www.abidingtruth.com/