BOSTON — The Massachusetts Supreme Court's homosexual marriage decision created a political firestorm in Massachusetts and led to an intensification of the nationwide debate over homosexual marriage.
The 4-3 decision, issued Nov. 18, gives the state Legislature 180 days to alter the state's marriage laws to allow homosexuals to marry.
“The Massachusetts Constitution affirms the dignity and equality of all individuals,” the majority wrote. “It forbids the creation of second-class citizens.”
The majority insisted that lawyers for the Commonwealth of Massachusetts had “failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.”
The decision came almost nine months after the court heard oral arguments in the case and five months after the U.S. Supreme Court's Lawrence v. Texas decision struck down the 13 remaining state laws banning homosexual activity.
In fact, the first citation in the 90-page decision was to the Lawrence decision and its own quotation of the Supreme Court's 1986 Planned Parenthood v. Casey decision upholding abortion: “Our obligation is to define the liberty of all, not to mandate our own moral code.”
It also said exclusion of homosexual couples from marriage is “incompatible with the constitutional principles of respect for individual autonomy and equality under law.”
The majority decision, written by Chief Justice Margaret Marshall, declared civil marriage to be the “voluntary union of two persons as spouses, to the exclusion of all others.
“This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships,” it said. “It advances the two legitimate state interests the [state health] department has identified: providing a stable setting for child rearing and conserving state resources.”
Daniel Avila, a spokesman for the Massachusetts Catholic Conference, said the mandate to the Legislature was a ruse so the court would have more political cover for its controversial ruling.
“The court essentially advised the Legislature that it will issue an order and that if the Legislature wants to do anything, it is free to do it,” Avila said. “That's basically a rubber stamp. The court will order [marriage licenses] within 180 days no matter what the Legislature does.”
Call to Arms
Avila said the decision has spurred everyday citizens to get involved and defend traditional marriage between a man and a woman.
“The phones have been ringing off the hook. Many people are still in shock, even though they knew that it was possible for the decision to go this way. But the way the court characterized [those who are opposed] to same-sex marriage has engendered a substantial amount of opposition to the ruling,” Avila said.
The court stated that the ban on same-sex marriage “works a deep and scarring hardship” on a segment of the community for “no rational reason.”
“The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety or general welfare suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual,” the court majority wrote.
Archbishop Sean O'Malley of Boston called the decision “alarming.” The archbishop said he hopes the state's political leaders “will have the courage and common sense to redress this situation for the good of society.”
President Bush issued a statement while in London critical of the decision.
“Marriage is a sacred institution between a man and a woman,” he said. The decision “violates this important principle.”
Bush also seemed to signal support for the Federal Marriage Amendment.
“I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage,” he said.
Alliance for Marriage, a coalition of religious and spiritual leaders, also indicated that the decision by the Massachusetts court emphasized the need for the Federal Marriage Amendment.
“Gays and lesbians have a right to live as they choose. But they don't have a right to redefine marriage for our entire society,” Alliance for Marriage president Matt Daniels said.
Daniels noted that the Boston Bar Association has repeatedly called for “federal constitutional claims” to be brought against all state and federal marriage laws.
Massachusetts Gov. Mitt Romney, a Republican, immediately denounced the decision for uprooting “3,000 years of recorded history” and pledged his support for an amendment to the commonwealth's constitution.
Romney later suggested civil unions that confer marital benefits to same-sex couples but not the term marriage might appease the four-judge majority.
“Under that opinion, I believe that a civil-union-type provision would be sufficient,” Romney said. “I believe their decision indicates that a provision that provides benefits, obligations, rights and responsibilities would be in conformity with their decision.”
But Lawrence Tribe, a law professor at Harvard University, said the decision offered no such interpretation.
“He must have read a different opinion and not the court's decision, which I read very carefully,” Tribe told the Boston Globe.
Other conservative activists acknowledged such a strategy is not just legally dubious but detrimental to marriage as well.
“Counterfeit marriage is counterfeit marriage,” said Genevieve Wood, a spokeswoman for the Family Research Council. “Don't give any of the benefits of marriage under a different name.”
She said the decision puts politicians “on notice” that they will have to take a stand on the issue of “same-sex” marriage.
“This is a battle that will be fought out state by state,” Wood said.
Some homosexual activists also said a civil-unions law wouldn't be adequate.
“My reading is that anything short of civil marriage does not satisfy the court's decision,” said Winnie Stachelberg, political director of the Washington-based Human Rights Campaign. She said the court's decision was “in the best traditions of our nation” and asserted that support for same-sex marriage has increased in the state as discussion of “marriage equality” has increased.
Support for same-sex marriage in Massachusetts is higher than the rest of the nation. An April Boston Globe/WBZ-TV poll found about half of the state's citizens supported it while 44% opposed it.
A nationwide Pew Research poll released in October found that 32% of Americans supported same-sex marriage while 59% opposed it.
Wood agreed that opposition to same-sex marriage was politically wise for candidates but said marriage is more important than any political contests.
“It's a winning issue, but that shouldn't be the only reason to do the right thing,” Wood said. “But I do think the president is not just following the polls. I think he believes that marriage is between a man and a woman.”
In the Bay State, conservative activists are working hard to change the constitution, which, by law, takes two years to accomplish.
“The odds are very good, [but] it's a multiyear process. We have a vote scheduled for Feb. 11,” said Ron Crews, president of the Massachusetts Family Institute.
Representatives from both houses of the Legislature meet together on that date to vote on an amendment that would define marriage to be between one man and one woman only.
If a simply majority of the combined delegates approves the measure in two consecutive years, it must be approved by a majority of voters in the following year's general election.The earliest the constitution can be amended is 2006.
Support for the amendment crosses party lines. Its sponsor, State Representative Philip Travis, and one of its strongest supporters, House Speaker Thomas Finneran, are Democrats.
Travis told the New York Times that the court “did a favor” to marriage supporters by taking civil unions out of the discussion.
“That has turned many people in favor of that amendment,” he said. “Some legislators I talked to today have changed their position. They were looking for a middle ground, and the tables are turned.”
“I've always been philosophically averse to amending the state constitution — it doesn't matter what the issue is,” Rep. Gene O'Flaherty, a Democrat, told the Times. “But in light of the judicial activism displayed by the court, I might have to re-evaluate my position.”
Crews remains confident that given the fallout from the decision, the amendment would pass.
“The Senate president told us that we would get a vote,” Crews said. “And if we get that vote, we believe it will pass.”
Joshua Mercer writes from Washington, D.C.