Gay-Marriage Ruling Puts Lawmakers on the Spot
By Kavan Peterson, Staff Writer
The Massachusetts Legislature has 180 days to decide how to make state law conform with a Supreme Judicial Court ruling that it is unconstitutional to deny gay and lesbian couples the right to marry. A lawyer for seven gay couples who brought the court action that prompted Tuesday's ruling said lawmakers have no alternative to legalizing gay marriage other than amending the state's constitution.
Opposition to the ruling is expected in the legislature and there is likely be a push for a constitutional amendment defining marriage as a union between man and woman. Democratic House Speaker Thomas Finneran has said he favors such a measure. But legal observers said it would take at least two years to amend the Bay State's basic document , so there is probably nothing lawmakers can do to stop marriage licenses from being issued at the end of the 180-day period.
If and when that happens, legal experts say the door will open to legalization of same-sex marriages in every state, based on the Constitution's "Full Faith and Credit Clause," which requires states to honor the "public acts, record, and judicial proceedings of every other state."
"Now it is no longer a hypothetical, it is a reality and it will affect marriage laws in every state," said Evan Wolfson, executive director of Freedom to Marry, a New York City based advocacy group that promotes marriage equality for homosexuals.
A national survey released Tuesday (11/18) by the Pew Research Center found that opposition to gay marriage has risen in recent months, going from 53 percent in July to to 59 percent today. Among respondents who described themselves as devoutly religious, opposition stood at 80 percent.
The Massachusetts high court ruling took a significant step beyond a 1999 Vermont Supreme Court gay marrige decision, which led to the creation of that state's "civil union" law.
The Vermont court ruled that withholding marriage rights from gay couples was unconstitutional, but it allowed the legislature to extend marriage-like rights to same-sex couples without allowing them to legally marry.
Attorney Mary Bonauto, who represented the plaintiffs, said that in the Massachusettts case the court ruled that gay couples are fully entitled to legally wed and that creating a separate class of marriage such as civil unions would not be acceptable because the constitution "forbids the creation of second-class citizens."
"The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution," the closely divided court said in its 4-3 opinion.
"The court has said inequality must end and we know that people will support us when they understand the real human consequences of discrimination against these families, and when they realize that this decision only invokes civil marriage licenses and does not affect religious practices or convictions," Bonauto said.
Among marriage rights sought by same-sex couples are hospital visitation rights, inheritance rights and access to a partner's Social Security benefits in case of death.
Linda Davies and Gloria Bailey, two of the plaintiffs in the case, said they have been waiting 32 years to get married and don't mind waiting six more months.
"We're not at all concerned about waiting, the SJC has spoken and they say we have the constitutional right to marry and as far as we're concerned that is coming from the highest court in the state and we know that nothing will change in the 180 days and in 180 days we will be married," Bailey told Stateline.org.
Opponents of same-sex marriage argue that allowing gay and lesbian couples to marry will undermine the institution of marriage and threaten social stability.
"This is the wake-up call for both the American public and our elected officials. 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 that will protect marriage on the federal level, we will lose marriage in this nation," Tony Perkins, president of the Family Research Council, said in a written statement.
The U.S. House of Representatives is currently considering a constitutional ban on gay marriage, which promises to be a contentious issue in the 2004 election.
Courts in Hawaii and Alaska have also upheld the right of same-sex couples to marry, but legislatures in those states quickly passed constitutional amendments that overruled those decisions.
Thirty-seven states have adopted legislation or constitutional amendments that define marriage as between one man and one woman. These measures are based on the federal 1996 "Defense of Marriage Act," which outlaws federal recognition of homosexual marriage and seeks to allow states to ignore same-sex marriages licensed elsewhere.