[ql06] PUBLIC: New MA Gay Marriage Decision

  • From: Stephen Kennedy <2srk@xxxxxxxxxxxxxxxx>
  • To: ql06@xxxxxxxxxxxxx
  • Date: Wed, 04 Feb 2004 17:42:57 -0500

The Massachusetts Supreme Court has clarified its earlier decision on 
gay unions, and again followed the Ontario decision. Separate but equal 
civil unions are not good enough - only legal marriage will do.

It's nice to see US courts looking north for persuasive decisions.

/Published on Wednesday, February 4, 2004 by the Boston Globe /
* Massachusetts Supreme Court Rules Civil Unions Aren't Enough, Same-Sex 
Couples Entitled to Marriage *
*by Jennifer Peter*

BOSTON -- The Massachusetts high court ruled Wednesday that only full, 
equal marriage rights for gay couples -- rather than civil unions -- 
would meet the edict of its November decision, erasing any doubts that 
the nation's first same-sex marriages would take place in the state 
beginning in mid-May.

"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 court issued the opinion in response to a request from the state 
Senate about whether Vermont-style civil unions, which conveyed the 
benefits -- but not the title of marriage -- would meet constitutional 

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 
had said the vote would be delayed.

The Supreme Judicial Court ruled in November that same-sex couples have 
a constitutional right to marry, and gave the Legislature six months to 
change state laws to make it happen.

But almost immediately, the vague wording of the ruling left lawmakers 
-- and advocates on both side of the issue -- uncertain if Vermont-style 
civil unions would satisfy the court's decision.

The state Senate asked for more guidance from the court and sought the 
advisory opinion, which was made public Wednesday morning when it was 
read into the Senate record.

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 immediately denounced the decision and vowed to pursue 
legislation to protect the traditional definition of marriage. Church 
leaders in the heavily 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.

The soonest a constitutional amendment could end up on the ballot would 
be 2006.

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 in 1999, the court told 
the Legislature that it could allow gay couples to marry or create a 
parallel institution that conveys all the 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 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

© Copyright 2004 Globe Newspaper Company.


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