Does it or doesn't it? That's the question being bantered about one week after the Massachusetts Supreme Court ruled that same-sex marraige should be legal in that state.
Strongly written articles have come down on the side of interpreting the decision as leaving no room for anything except same-sex marriage on par with heterosexual marriage. Equally vocal are those who say that there is "wiggle room" to make a compromise similar to the civil-unions effort of Vermont.
One thing is certain—if full marriage does come for Massachusetts' gays and lesbians, its ramifications will be felt throughout the country.
The Massachusetts Supreme Court last week finessed the issue of gay marriage. It agreed that same-sex couples have the right to wed but left it to the legislature to determine how that will be carried out. It gave them 180 days to do so.
What is up for debate is just what they mean—did they mean make it exact equal marriage, or did they mean find a compromise? The state's governor and other political leaders are outraged at the ruling and say they will fight it—although that state Supreme Court decision can not be appealed. The interpretation will be what is up for grabs. If the legislature says the court was leaving room for civil unions, and they pass those lesser rights, the lawyer and clients who just won the recent case vow to continue the fight.
A decision on the case, known as Goodridge vs. Department of Public Health, had been expected months ago, but it was issued on Nov. 18. The 4-3 decision was closer than most observers had anticipated.
The majority opinion, written by Chief Justice Margaret Marshall, said, "The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens ... the Commonwealth [of Massachusetts] has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."
Reviewing state marriage law and its implementation, it summarized, "In short, for all the joy and solemnity that normally attend a marriage [the law] governing entrance to marriage is a licensing law."
It rejected the state's argument that procreation is the primary purpose of marriage. It said, "The exclusive and permanent commitment of the marriage partners to one another ... [is] the sine qua non of marriage."
The decision cited "the immeasurable advantages that flow from the assurance of a 'a stable family structure in which children will be reared, educated, and socialized,'" and found no rational basis "to penalize children by depriving them of State benefits" because of their parents' sexual orientation.
"The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason."
Rather than throw out the marriage law as unconstitutional, it remanded the case to the trial court and delayed its implementation for 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."
Justice John M. Greaney concurred with the majority but would have gone farther. Using "equal protection" analysis, he would order immediate issuance of a marriage license. Delaying the remedy "on the grounds that the couples are of the same gender, constitutes a categorical restriction of a fundamental right."
The three dissenters, in a decision penned by Justice Robert J. Corday, argued, "The court has transmuted the 'right' to marry into a right to change the institution of marriage."
They drew upon U.S. Supreme Court decisions that tied the "fundamental" right to marry "primarily on the underlying interest of every individual in procreation, which, historically, could only legally occur within the construct of marriage because sexual intercourse outside of marriage was a criminal act."
"... No matter how personal or intimate a decision to marry someone of the same sex might be, the right to make it is not guaranteed by the right of personal autonomy."
Corday's dissent acknowledged that plaintiffs had made a powerful case for the extension of the benefits and burdens of civil marriage to same-sex couples, but he argued, "that decision must be made by the legislature, not the court."
Justice Martha B. Sosman, in a separate dissent that was joined by the two other judges, argued that the legislature should not tinker with the traditional definition of marriage until it is sure that it will not adversely affect this critical institution within society. She advocated a circular Catch-22-type approach that would defer gay marriage until society reached a consensus that the idea in the abstraction was a good one.
"This is a momentous legal and cultural milestone. The law caught up with the reality that gay people and families are part of the fabric of our communities," said Mary L. Bonauto. She is an attorney with Gay & Lesbian Advocates and Defenders (GLAD), the Boston-based group that represented the gay couples.
"This is a proud moment for our family," said lead plaintiff Hillary Goodridge. "We no longer have to explain to our eight-year-old daughter why we can't marry, or that we love each other even though we are not married. And more importantly, we'll be able to provide Annie with the full protections under marriage" that we cannot provide now.
"We hope that our fellow Americans will treat these new marriages just like they want their own to be treated, offering respect and support to these couples," said David Buckel, director of Lambda Legal's Marriage Project. Lambda is appealing a lower court decision on marriage in New Jersey.
"Our U.S. Supreme Court victory [on sodomy] pushed open a door that had been locked for gay people for decades," said Kevin Cathcart, executive director of Lambda Legal. "Today's decision is in that same spirit. We will build on our victory and deliver its promise to gay people in all areas of life, including relationship recognition, parenting, schools, and employment."
Yet even amidst the celebrating there were warnings of caution. "We are also preparing our families for an onslaught of attacks by right-wing activists," said Dave Noble, executive director of National Stonewall Democrats. "The ruling is the beginning, not the end, of our struggle for all marriages to be treated equally."
The Family Research Council is leading the right-wing charge. "This is a wake-up call for both the American public and our elected officials," said FRC president Tony Perkins, predicting the apocalypse.
"If we do not amend the Massachusetts State Constitution so that it explicitly protects marriage as the union of one man and one woman, and if we do not amend the U.S. Constitution with a federal marriage amendment [FMA] that will protect marriage on the federal level, we will lose marriage in this nation."
"We must amend the Constitution if we are to stop a tyrannical judiciary from redefining marriage to the point of extinction."
Most leading Democratic political leaders have embraced a traditional definition of marriage as between a man and a woman, and yet have opposed amending the Constitution. Their Republican counterparts have been wary of embracing a constitutional amendment, pending the Massachusetts decision.
The court's involvement of the legislature in the process of creating gay marriage may offer a sufficient olive branch to deter the Bush administration from jumping on the marriage amendment bandwagon. Only time, and polling data, will tell.
Meanwhile, the earliest a state constitutional amendment could be put before voters would be 2006. That means if marriage is implemented in 2004, there would be a two-year window where gays and lesbians would be allowed to marry. If the sky does not fall in, and massive numbers of heterosexual marriages are not destroyed by the new law, that new reality may be enough to convince voters to keep same-sex marriage for good.
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