The Massachusetts Supreme Judicial Court told the state legislature that civil unions are not the same as marriage, and that will not treat gay and lesbian citizens equally, as is required under the state constitution. The ruling had been requested by the state Senate and was released Feb. 3.
The four-member majority cited language in its original ruling when it wrote, 'Without the right to choose who to marry, same-sex couples are not only denied full protection of the laws, but are 'excluded from the full range of human experience.''
It said the proposed civil union bill 'does nothing to 'preserve' the civil marriage law, only its constitution infirmity' of discriminating against gays. 'The history of our nation has demonstrated that separate is seldom, if ever, equal.'
'The dissimilitude between the terms 'civil marriage' and 'civil union' is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.'
To remove any doubt as to what they meant, the majority opinion closed with the sentence: 'The answer to the question is 'No.''
'The Court looked at this issue as a matter of principles, not of politics,' said Mary Bonauto, the attorney with Gay & Lesbian Advocates & Defenders, who have led the legal challenge. 'While we understand that some find civil unions to be a good compromise in this debate, the fact is it does not equal marriage and does not provide the same protections and rights that come with marriage.'
'This is not just a good day for gay people in Massachusetts—it's an important moment for everyone in Massachusetts and elsewhere who believes in basic fairness,' said David Buckel, director of Lambda Legal's Marriage Project.
'This opinion means that all Massachusetts citizens in loving and committed relationships will be treated equally by the state,' said Patrick Guerriero, executive director of Log Cabin Republicans.
'As a former legislator, I'm confident that lawmakers will focus on what's important to Massachusetts families and embrace this as a positive step forward,' said Cheryl Jacques, president of the Human Rights Campaign (HRC). 'It's time to turn attention to important issues that strengthen the families of Massachusetts, rather than focusing on a divisive and costly battle to write discrimination into the state constitution.
Log Cabin, HRC, and MassEquality are joining in an advertising campaign defending marriage rights for all and saying that amending the state constitution is not a conservative course of action.
Far right social conservatives cranked up the volume more than ever in denouncing 'activist judges' and calling on Massachusetts legislators to pass an amendment to the state constitution outlawing gay marriage. They also are urging passage of a federal constitutional amendment and some are proposing language even more radical than that of the Federal Marriage Amendment (FMA) already introduced in Congress.
Gary Bauer, president of American Values, bleated, 'A constitutional crisis is now at hand' because 'marriage in America is no longer the exclusive union of one man and one woman.'
He went on to attack front-running democratic presidential candidate John Kerry's claim that he does not support gay marriage as one that 'rings hollow,' because Kerry was one of just 14 Senators to vote against the Defense of Marriage Act in 1996.
Bauer also told the media that President Bush's endorsement of the FMA was imminent. The President's spokesman said Bush called the ruling 'deeply troubling.'
'Marriage is a sacred institution between a man and a woman. If activist judges insist on re-defining 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,' Bush said through a spokesman.
On Monday, The New York Times repotred a new strategy by Bush and conservatives—that states can use contract law to ensure some of the rights that gay partners are seeking through marriage or civil union.
Rep. Jim DeMint, R-SC, paraphrased to Time magazine the president's comments : 'He said he was not going to condemn anyone, that the need to have various types of agreement does not mean we need to redefine marriage. 'If people want to have contracts on hospital visitation and benefits, that's OK.''
A White House spokeswoman, said: 'States, through their contract law, have the ability to address some of the issues that advocates of gay marriage are raising, such as hospital visitation rights and insurance benefits and the ability to pass on one's estates to another. What the president has said is that he strongly believes in the sanctity of marriage, so that's what he is saying.'
Senate Majority Leader Bill Frist vowed, 'We must protect, preserve and strengthen the institution of marriage against activist judges. If that means we must amend the Constitution, as seems increasingly likely, then we will do just that.'
Frist, like Bush, is making all of the right noises to play to irate social conservatives, yet neither has directly endorsed the FMA.
Leading Democratic presidential contender Sen. John Kerry is doing his own waffling. The Los Angeles Times reported, when pressed at a Portland, Maine, rally for his position on the Massachusetts Court's advisory opinion he said, 'Look, I support equal rights and the right of people to have civil union, equal partnership rights, I don't support marriage. I never have. That's my position.'
When asked about endorsing a constitutional ban on gay marriage, Kerry said he 'would have to see what language there is.'
'The GLBT community is a critical part of the Democratic Party and Democrats have a historical commitment of opposing discrimination and fighting for equality and basic fairness,' said Eric Stern, Director of Gay, Lesbian, Bisexual and Transgender Outreach for the Democratic National Committee.
A joint session of the Massachusetts House and Senate is scheduled for Feb. 11 to consider an amendment to the state constitution limiting marriage to 'only the union of one man and one woman.' Both politicians and the public seem fairly closely divided on the subject, with many still grappling with the issues.
Should both chambers pass the amendment, they will have to vote upon it again in 2005 and put it to public referendum in 2006.
Massachusetts Gov. Mitt Romney, had an essay in the Feb. 5 Wall Street Journal warning other states about same-sex marriage and telling them to prevent the constitutional dilemma his own state faces (it will take two legislative sessions to change the law).
'No matter how you feel about gay marriage, we should be able to agree that the citizens and their elected representatives must not be excluded from a decision as fundamental to society as the definition of marriage. There are lessons from my state's experience that may help other states preserve the rightful participation of their legislatures and citizens, and avoid the confusion now facing Massachusetts,' he wrote.
It took the U.S. Supreme Court of the 1960s to overturn interracial marriage bans when individual state continued to discriminate based on race.
See www.MassEquality.org .