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Massachusetts Court: State Wrong to Ban Gay Marriage

By Fred Barbash
Washington Post Staff Writer
Tuesday, November 18, 2003; 1:18 PM


Massachusetts' highest court today invalidated a state ban on same-sex marriages, ruling that the right to marry is "the right to marry the person of one's choice," regardless of gender.

It stopped short of immediately legalizing same-sex marriages, however, referring the issue to the Massachusetts legislature for action "appropriate" in light of the ruling.

By a 4-3 vote, the state's Supreme Judicial Court said Massachusetts was violating its state constitution by denying the "legal, financial and social benefits of marriage" to people of the same sex who wish to marry.

It rejected the state's chief argument in favor of the ban: that the purpose of marriage is "procreation." That, the court concluded, is largely a cover for "persistent prejudices" against homosexuals.

It then took the extraordinary step of redefining the common law definition of marriage in Massachusetts.

Marriage, under the law, is not merely a union between a man and a woman, the court said.

Rather, it is "the voluntary union of two persons as spouses, to the exclusion of all others."

It is a "civil right," Chief Justice Margaret H. Marshall wrote for the court, guaranteed by the state constitution's commitment to "the dignity and equality of all individuals."

Marshall left no doubt that the court expected conformance by the legislature. The "marriage ban," she wrote for the court, "works a deep and scarring hardship . . . for no rational reason."

The legislature, however, is free to amend the state constitution to overrule today's decision. There was some speculation today that a battle over a state constitutional amendment would be the next step in the Massachusetts controversy.

The ruling is similar to a 1999 Vermont Supreme Court decision, which led to its legislature's approval in 2000 of civil unions that give couples many same benefits of marriage.

The Massachusetts decision went further, however, by adhering to the concept of "marriage" alone. Marriages are recognizable across state lines. Civil unions are not.

Courts in Hawaii and Alaska have previously ruled that the states did not have a right to deny marriage to gay couples, but those decisions were overturned by the adoption of state constitutional amendments.

Gary Buseck, executive director of Gay & Lesbian Advocates & Defenders, said the seven couples who sued the state seeking the right to marry were "ecstatic" over the decision, which he called "a flat out victory," the Associated Press reported.

Massachusetts Gov. Mitt Romney, a Republican, criticized the court's decision and said he would support a state constitutional amendment.

Paul Martinek, editor of Lawyers Weekly USA, told the Associated Press that the ruling was "historic" even though it did not immediately legalize same-sex marriages.

"The court appeared to be on the verge of announcing that same sex couples have the right to same-sex marriage but they took a tiptoe back from the cliff and allowed the legislature to adopt something that is not marriage in name but in all other respects," Martinek said.

"This court is going one step further than Vermont. This court is saying marriage is required or the benefits of marriage are required. But they did put the ball back in the legislature's court," he said.

The Massachusetts court declined to order that marriage licenses be issued to the seven couples who brought the suit at issue today, choosing to let the legislature take action it considers "appropriate in light of this opinion."

Dissenting were Justices Francis X. Spina, Martha B. Sosman and Robert J. Cordy. They said the marriage laws were the province of the state legislature, not the court, which should not be substituting its judgment of that of popularly elected legislators.

All the couples who brought suit in April, 2001 had been together for long periods of time -- from 30 years to 7. The ranged in age from 60 to 35 and most had children. Included among the plaintiffs were an investment banker, an engineer, a business executive and a lawyer. All were denied marriage licenses.

The court said that "the benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death," including the ownership of property, the laws of inheritance, insurance coverage and especially, the "presumptions of legitimacy and parentage of children. . . . "

"Without the right to marry . . . one is excluded from the full range of human experience and denied full protection of the laws."

It rejected all of the state's stated rationales for such an exclusion, which included creating a "favorable setting for procreation" and "child-rearing." It concluded that the marriage restriction is really "rooted in persistent prejudices against persons who are (or who are believed to be) homosexual."

"It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents' sexual orientation."