Massachusetts Gives New Push to Gay Marriage in Strong Ruling

["F A B I O C C H I::" <eco_fabiocchi@tin.it>]

February 5, 2004
Massachusetts Gives New Push to Gay Marriage in Strong Ruling
By PAM BELLUCK http://www.nytimes.com/2004/02/05/national/05GAYS.html?hp
     
BOSTON, Feb. 4 - Massachusetts' highest court removed the state's last barrier to gay marriage on Wednesday, ruling that nothing short of full-fledged marriage would comply with the court's earlier ruling in November, and that civil unions would not pass muster.

The ruling means that, starting on May 17, same-sex couples can get married in Massachusetts, making it the only state to permit gay marriage. Beyond that, the finding is certain to inflame a divisive debate in state legislatures nationwide and in this year's presidential race.

"The dissimilitude between the terms `civil marriage' and `civil union' is not innocuous," four of seven justices on the state's Supreme Judicial Court found. "It is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status."

The ruling came in response to a request by the Massachusetts Senate asking the court whether a bill giving same-sex couples the same rights and benefits of marriage, but calling their relationships civil unions, would comply with its November decision saying that gays had a constitutional right to marry.

The court said that such a bill "would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits. It would deny to same-sex `spouses' only a status that is specially recognized in society and has significant social and other advantages."

"The Massachusetts Constitution," the court said, "does not permit such invidious discrimination, no matter how well intentioned." [Excerpts, Page A27.]

The ruling will probably give new impetus to a push by many conservatives for a constitutional amendment that would limit marriage to unions joining a man and a woman. 

In a statement Wednesday, President Bush condemned the Massachusetts court's latest ruling but stopped short of explicitly endorsing a constitutional amendment. "Marriage is a sacred institution between a man and a woman," he said. "If activist judges insist on redefining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage." [Page A27.]

Wednesday's decision caused an uproar in the Massachusetts Legislature, where lawmakers are scheduled on Wednesday to vote on an amendment to the state's Constitution banning same-sex marriage. Many lawmakers in the largely Democratic, largely Roman Catholic body had supported civil unions but not gay marriage and were hoping the court would not force them to make an all-or-nothing decision.

At least one influential legislator, State Representative Eugene O'Flaherty, the chairman of the House Judiciary committee and a backer of civil unions, said he was almost certain to vote for the amendment now.

An amendment could not take effect until November 2006, because it would need to win passage in two consecutive legislative sessions and be approved in a voter referendum.

Nationally, the decision vaults the issue to a more prominent role in the presidential election, especially since the Democratic front-runner, Senator John Kerry, who supports civil unions and opposes same-sex marriage, is from Massachusetts.

It will also undoubtedly unleash activity in legislatures and courtrooms nationwide, as activists on each side of the issue seek to use the Massachusetts ruling to influence policy elsewhere.

Already, 38 states have laws defining marriage as a heterosexual institution, and 16 states are considering constitutional amendments that would ban same-sex marriages. Congress also passed a law in 1996, the Defense of Marriage Act, prohibiting federal recognition of gay marriages and relieving states of any obligation to recognize gay marriages from states where they might be legal.

As recently as Tuesday, fueled in part by the November court decision in Massachusetts - like Wednesday's, a 4-3 ruling - the Ohio Legislature approved a strict ban on same-sex unions, barring state agencies from giving benefits to both gay and heterosexual domestic partners.

Opponents of gay marriage vowed on Wednesday to increase their efforts further and push for an amendment to the federal Constitution.

"This case will determine the future of marriage throughout America," said Tony Perkins, president of the Family Research Council. "If same-sex couples `marry' in Massachusetts and move to other states, the Defense of Marriage Act will be left vulnerable to the same federal courts that have banned the Pledge of Allegiance and sanctioned partial-birth abortion."

Sandy Rios, president of Concerned Women for America, said "if the court is allowed to get away with these decisions with no accountability, it is the beginning of the crumbling of our democracy."

Proponents of same-sex marriages said they were hopeful that the Massachusetts ruling might lend legitimacy to such unions in other states. "We are really facing this onslaught of religious- and political-right attacks across the country, but we are hoping that fair-minded people will reject it and will reject this culture war," said Matt Foreman, executive director of the National Gay and Lesbian Task Force.

Legal experts said there would inevitably be legal challenges filed by same-sex couples who marry in Massachusetts and move to other states.

"There's going to be a fist fight in Ohio," said Arthur Miller, a Harvard law professor. "There'll be a situation, for example, in which a spouse of a couple married in Massachusetts but living in Ohio tries to inherit and make claims, and that will end up in the U.S. Supreme Court."

Same-sex couples in Massachusetts and other states began marriage plans, but several said they were proceeding cautiously. "When I see those first couples coming from City Hall, I'll say, `it's real, but it's really real,' " said Bev Kunze, 48, a telecommunications manager in Boston who plans to marry her partner of 11 years, Kathleen McCabe, 52, a city planner.

Fred Kuhr, 36, the editor of In Newsweekly, a newspaper for gay men and lesbians, plans to marry his partner, Kip Roberson, 39, director of the Sharon, Mass., public library. But he said, "There are still roadblocks in the way, and even though this is a great day in terms of this issue, I'm not jumping up and down and walking down the aisle just yet."

The prospect of same-sex marriage in Massachusetts raises practical questions: What will life be like for couples who marry here and move back to a state that outlaws same-sex marriages? Or for couples in Massachusetts who would be entitled to state marriage benefits but not federal benefits, like the right to file taxes jointly or qualify for Social Security payments?

Indeed, in a dissenting opinion on Wednesday, Justice Martha B. Sosman listed some discrepancies. For example, she noted, same-sex couples would be ineligible for federal health care or nursing home benefits, and couples living in other states would not have the right to get divorced there.

The majority opinion, however, said, "We would do a grave disservice to every Massachusetts resident, and to our constitutional duty to interpret the law, to conclude that the strong protection of individual rights guaranteed by the Massachusetts Constitution should not be available to their fullest extent in the Commonwealth because those rights may not be acknowledged elsewhere."

Elizabeth Bartholet, a family-law professor at Harvard, said that even though other states might officially disavow gay marriages, a Massachusetts marriage certificate might informally encourage recognition of same-sex unions in areas like employment, health care and education.

"It doesn't mean everyone in that state subscribes to that," she said. "It may, for example, make a real difference in terms of all kinds of employment benefits that may be available to spouses. If you're living in Massachusetts, it's going to be hard for your Texas-based employer to deny you marital benefits."

Representative O'Flaherty said he would try to determine if the Legislature might still be able to draw up a new marriage law that could provide the court with a "rational basis why marriage should be a institution between a man and a woman."

But even the state attorney general, Thomas Reilly, whose office argued against same-sex marriage in the original case, said Wednesday's ruling made clear "same-sex couples have the constitutional right to marry under Massachusetts law."

The court seemed to offer one alternative. In a footnote, the decision found that same-sex unions would not have to be called marriages if "the legislature were to jettison the term `marriage' altogether."

Some lawmakers suggested they would pass the amendment to give the public a say on it in a referendum. Gov. Mitt Romney agreed, saying "the people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage."

Should an amendment pass, Mr. O'Flaherty said, legislators might ask the court to issue a stay until the amendment process was complete - a request legal experts thought the court would be unlikely to grant. Just the same, he and others asked, what would happen to same-sex marriages if, two and a half years from now, the state wound up making such marriages illegal?


Katie Zezima contributed reporting for this article.