Boston.com / News / Special reports / Gay Marriage: On February 3, 2004, the Justices submitted the following answer to a question propounded to them by the Senate.
To the Honorable the Senate of the Commonwealth of Massachusetts:
The undersigned Justices of the Supreme Judicial Court respectfully submit their answers to the question set forth in an order adopted by the Senate on December 11, 2003, and transmitted to the Justices on December 12, 2003. The order indicates that there is pending before the General Court a bill, Senate No. 2175, entitled "An Act relative to civil unions." A copy of the bill was transmitted with the order. As we describe more fully below, the bill adds G. L. c. 207A to the General Laws, which provides for the establishment of "civil unions" for same-sex "spouses," provided the individuals meet certain qualifications described in the bill.
The order indicates that grave doubt exists as to the constitutionality of the bill if enacted into law and requests the opinions of the Justices on the following "important question of law":
"Does Senate, No. 2175, which prohibits same-sex couples from entering into marriage but allows them to form civil unions with all 'benefits, protections, rights and responsibilities' of marriage, comply with the equal protection and due process requirements of the Constitution of the Commonwealth and articles 1, 6, 7, 10, 12 and 16 of the Declaration of Rights?"
.....As the court concluded in Goodridge, the traditional, historic nature and meaning of civil marriage in Massachusetts is as a wholly secular and dynamic legal institution, the governmental aim of which is to encourage stable adult relationships for the good of the individual and of the community, especially its children. The very nature and purpose of civil marriage, the court concluded, renders unconstitutional any attempt to ban all same-sex couples, as same-sex couples, from entering into civil marriage.
The same defects of rationality evident in the marriage ban considered in Goodridge are evident in, if not exaggerated by, Senate No. 2175. Segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to advance or "preserve" what we stated in Goodridge were the Commonwealth's legitimate interests in procreation, child rearing, and the conservation of resources. See Goodridge, supra at 341. Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status. The holding in Goodridge, by which we are bound, is that group classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal.
.... The argument in the separate opinion that, apart from the legal process, society will still accord a lesser status to those marriages is irrelevant. Courts define what is constitutionally permissible, and the Massachusetts Constitution does not permit this type of labeling. That there may remain personal residual prejudice against same-sex couples is a proposition all too familiar to other disadvantaged groups. That such prejudice exists is not a reason to insist on less than the Constitution requires. We do not abrogate the fullest measure of protection to which residents of the Commonwealth are entitled under the Massachusetts Constitution. Indeed, 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. We do not resolve, nor would we attempt to, the consequences of our holding in other jurisdictions. See id. at 340-341.5 But, as the court held in Goodridge, under our Federal system of dual sovereignty, and subject to the minimum requirements of the Fourteenth Amendment to the United States Constitution, "each State is free to address difficult issues of individual liberty in the manner its own Constitution demands." Id. at 341.
...The answer to the question is "No."
Interesting.
Only the fact that amending the Massachusetts state constitution is a rather cumbersome process keeps the Massachusetts government from immediately placing on the ballot an amendment restricting marriage to one man and one woman. Mind, I still believe the question will be on the ballot three years hence. The conservatives will be unyielding and relentless in their drive to have what they consider an abomination to be removed from the books, and enough people still regard marriage in an almost purely religious light (regardless of the fact that the court is quite clear about discussing only civil marriage) that there are probably some relatively moderate people, who think of themselves as the "live and let live" persuasion, who would still vote to restrict this right. (It will be fascinating to see what the legislature does in the next 120 days or so, which is about the time remaining to them from the SJC's original order. I would be willing to wager lavish amounts of money -- if I had lavish amounts of money -- that the legislature's response will be to prepare an amendment, but otherwise to do nothing whatsoever to change the state's civil marriage code. After all, the SJC has more or less done the work for them. Someone from a more conservative district would be working for the amendment; someone from a more liberal district would want to revise the laws. The moderate middle, whatever there may be of it, will on the other hand be desperate to avoid going on the record with any decision in any direction. The question, to which I don't know the answer, is if there's enough of a moderate middle in Massachusetts to prevent action being taken -- and if it minds being aligned with the conservative right, which would be the net result, after all.)
That said, and allowing for the fact that it's early days yet and any online survey is by its nature somewhat self selecting ... at the moment, support for the ruling is running at approximately 70% in favor vs 30% against. So it's entirely possible that an amendment to strike down the effects of this decision might well run into some tough going.
Possible.
(Good GRIEF. Massachusetts is actually having a constitutional convention next Wednesday for this issue, and just this issue.)
And our Glorious Leader's official mouthpieces have disgorged his opinion on the ruling, which surprises nobody:
White House finds Massachusetts ruling "deeply troubling": The White House says today's Massachusetts court ruling on gay marriage is "deeply troubling." And it's again raising the possibility of a constituional amendment barring same-sex marriages. [...] Press Secretary Scott McClellan says the White House is reviewing the decision. But he says it's just the kind of meddling by "activist" judges President Bush warned about in his State of the Union speech. Bush said if such rulings continue, a constitutional amendment may be needed. McClellan says the president is "firmly committed to protecting and defending" marriage -- defined as between a man and a woman.
Yes, of course he is.
Posted by iain at February 04, 2004 02:50 PM
