Massachusetts Court rules state cannot ban gay marraige

[The Emperor Fabulous]

(CNN) -- Massachusetts' highest court ruled Tuesday that the state cannot deny gays and lesbians the right to marry.

But the Massachusetts Supreme Judicial Court stopped short of allowing marriage licenses to be issued to the couples who challenged the law, and gave the state Legislature 180 days to find a solution, The Associated Press reported.

In the United States, Vermont is the only state to allow same-sex couples the rights and benefits of marriage. Vermont calls them civil unions, rather than marriages.

California's State Assembly has passed a domestic partnership law to provide similar benefits, but it stops short of allowing gays to marry.

In its ruling, the Massachusetts court said the state "failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."

Arguments in the case were heard March 4. Under its internal guidelines, the court usually tries to issue decisions within 130 days of hearing such arguments, but the decision went past the anticipated summer deadline.

The case was filed by seven same-sex couples who were denied marriage licenses and has attracted national attention, with advocates on both sides predicting that the Massachusetts court could become the first in the nation to legalize gay marriage.

"We're talking about people who don't have equality under the law and should have it, because all citizens in this state are born free and equal," Mary Bonauto, an attorney for the plaintiffs who also works for the Boston-based Gay and Lesbian Advocates and Defenders, said last summer.

The U.S. Supreme Court ruled that anti-sodomy laws are unconstitutional, and last June 10, an appeals court in the Canadian province of Ontario struck down a ban on same-sex marriage.

States determine marriage laws
In the United States, marriage laws are determined by states, and a number of states have passed laws forbidding gays from marrying, often also barring the recognition of a same-sex marriage performed in another state. The federal government's Defense of Marriage Act (DOMA), while not an outright ban on gay marriage, declares that states are not required to recognize a same-sex marriage performed in another state.

DOMA, passed by Congress in 1996, also effectively bars the federal government from recognizing same-sex unions by defining marriage as "a legal union between one man and one woman as husband and wife" and spouse as "a person of the opposite sex who is a husband or a wife."

Among the plaintiffs in the Massachusetts case are Julie and Hillary Goodridge, women who have been a couple for 16 years. They are raising a daughter, Annie, who is 7 years old.

In Goodridge et al v. Department of Public Health, the Goodridges and six other couples seek recognition of their marriages.

Massachusetts Assistant Attorney General Judith Yogman argued the state's case before the court in March, saying the state wants to encourage the heterosexual model of marriage.

Massachusetts Attorney General Tom Reilly had argued it is for the legislature, not the courts, to decide whether to redefine the institution of marriage.

Quite a progression...first I believe in the country by the judicial branch in a state

[chequita guevara]

No, Hawaii was first. Then the people of Hawaii passed an amendment to the state Constitution that defined marriage as between one man an one woman.

This is very interesting. Wonder how it's gonna stand up.

Anyway, laws that refuse to recognize gay marriages from other states are clearly unconstitutional, as they violate the full faith and credit clause.

[Spec]

Who really cares if gay people get married? It is not up to us but up to them to decide. This should not be a court case but a go right ahead case.
It's not like a marriage between brothers and sisters kinda stuff....
`Besides, marriage is onoly a piece of paper on which is says that the 2 people concerned love eachother and want to spend the rest oh their life toghether. It's only a celabration of their love for one another.
In that case, should they make a law that says that gay people cant celebrate christmas and easter?!

Spec.

[David Floyd]

Good news

[Ramo]

Good to see a responsible court.

[The Templar]

The legislature is already gearing up to amend the state constitution. I don't think there's going to be much of a show here folks. On the bright side, if Romney signs off on the amendment, history is going to remember him as fondly as it remembered Chief Justice Taney.

[Ben Kenobi]

We're talking about people who don't have equality under the law

They can marry someone of the opposite sex, no one will stop them. How are they being discriminated against?

Society does not have an obligation to recognise every partnership as the equivalent of marriage.

[Ramo]

The state has an obligation to give equal weight to gay partnerships as straight partnerships.

[David Floyd]

BK,

If the state is going to give marriages involves men and women certain economic benefits, then they have an obligation to provide those same benefits to marriages involves the same sex.

State recognition of a marriage should be automatic, because as far as the state should be concerned, marriage is simply a contractual agreement between two adults. Recognition shouldn't be a problem, assuming both adults are competent to enter into contracts.

[Datajack Franit]

I don't like gays using the world "marriage", which has a religious meaning after all, they should use the word "union"; but if non-believers can have a "marriage", then gays as well can, I presume

[Lorizael]

Originally posted by Ben Kenobi




They can marry someone of the opposite sex, no one will stop them. How are they being discriminated against?

Society does not have an obligation to recognise every partnership as the equivalent of marriage.

Why does marriage have value to society, Ben? If it's for religious reasons then it doesn't matter, because the US is a secular state. If it's for child-bearing reasons, gays can still raise children, they just can't have biological children. Why must marriage be treated as special?

[Guynemer]

My feelings are quite conflicted.

On the one hand, this is obviously the correct ruling, and I'm overjoyed that this small battle has been won.

On the other hand, 12 months before the election, this has Wedge Issue writen all over it. The Republicans are going to jump on this like it was spare change on the sidewalk.

The Dems will have to decide whether or not to play to the polls, or try to actually debate and educate and change minds.

Hmmm... the easy way out, or show cojones... I can't help but wonder what the Democrats will do...

[Boris Godunov]

Originally posted by Datajack Franit
I don't like gays using the world "marriage", which has a religious meaning after all, they should use the word "union"; but if non-believers can have a "marriage", then gays as well can, I presume

There is no exclusively religious definition of "marriage." The origin of the word isn't ultimately religious (from Latin "maritus" it seems). The U.S. government recognizes marriages whether they are religious in nature or not.

Religion has no ownership of the word.

[The Templar]

Originally posted by Boris Godunov

Religion has no ownership of the word.

Exactly. My marriage certificate says 'State of New York' and the most liberal judge we could find presided over our wedding - not a priest, imam, or any other superstitious wackos at the ceremony.

And DF has it exactly right in his own libertarian way - if the state is offering bundles of rights to couples it should not be singling out heterosexuals for the benefit.

[Ben Kenobi]

MY BOLDS:

http://www.msnbc.com/news/995296.asp?0dm=C12ON

Nov. 18 Tuesday’s Massachusetts Supreme Judicial Court ruling that gay couples cannot be barred from the benefits and obligations of civil marriage has thrown an incendiary issue into the middle of the 2004 election. Although the court was interpreting only the Massachusetts Constitution and its ruling was stayed for six months, the reverberations will be felt across the United States perhaps most deeply in socially conservative states where legislators may fear that their state courts may at some point be compelled to give legal recognition to marriages between gay people.

THERE WILL be those who try to use the decision today to divide Americans, remarked Democratic presidential front-runner Howard Dean. In fact Americans are deeply divided on this issue, if polls and interviews with voters are any guide, and elections tend to exacerbate divisions on such issues.

A new national survey of 1,515 Americans, released Tuesday by the Pew Research Center, found that opposition to marriage between gay people has risen from 53 percent in July to 59 percent in Pew’s current survey. The poll was conducted from Oct. 15 to Oct. 19.

The survey also found that nearly four out of five voters who favor re-electing President Bush oppose marriage between gays.

But voters who want a Democrat elected in 2004 are split, with 46 percent favoring legal recognition of marriages between gays and 48 percent opposed.

CONSTITUTIONAL AMENDMENT

Republicans in Congress are almost certain to respond to the Massachusetts ruling by accelerating consideration of the Federal Marriage Amendment, which 96 members of the House are co-sponsoring.

Marriage in the United States shall consist only of the union of a man and a woman, the proposed amendment says.

If the 2004 election becomes partly a battle over the constitutional amendment, the struggle may well mobilize committed social conservatives to get out and vote.

Republican strategists are likely to frame the issue as one of judicial activists on the bench imposing their values on the people. Republicans take their cue from Supreme Court Justice Antonin Scalia’s dissent in the July decision that struck down state anti-sodomy laws.

Scalia said judges should not force their views of gay rights on the American people. The premise of our system is that those judgments are to be made by the people and not imposed by a governing caste that knows best, Scalia said.

Referring to the proposed marriage amendment, Evan Wolfson, head of a group called Freedom to Marry, told MSNBC.com Tuesday, There will be tremendous pressure from right-wing groups to write discrimination into the Constitution. Most Americans will reject that pressure. People will see that there is no good reason for denying gay people the protection of marriage.

Wolfson pointed out that the Massachusetts decision does not require implementing legislation by the Massachusetts legislature. In six months, licenses will issue to gay couples, he said.

he Massachusetts legislature could try to amend the state constitution, but that would require a ratifying vote by the people.

The Massachusetts ruling gives marriage for gay people legitimacy, and Wolfson said the news media could perform a useful service by ceasing to use the phrase gay marriage as if it were a separate legal entity. You wouldn’t say ‘black marriage,’ he said.

DANGER FOR GOP

If Republican strategists decide the better part of valor is delay or muting of the marriage issue in 2004, then conservatives at the grass roots may be demoralized. Some might even stay home sulking on Election Day rather than turn out to cast ballots for GOP candidates.

The electoral stakes are enormously high for Democrats, too. It is no accident that of the 96 co-sponsors of the constitutional amendment, only eight are Democrats, all of them from the South and the rural Midwest.

One outcome the Democrats cannot afford in next year’s elections is a total wipe-out in the South and the rural Midwest. Whether the Republicans use marriage as a wedge issue or not, anything that repelled Southern and Midwestern voters from the Democratic ticket would be costly.

It is no wonder that most politicians on both sides reacted cautiously to Tuesday’s news. One bracing exception, as he so often is, was Democratic presidential hopeful Rep. Dennis Kucinich. The Ohio congressman plays a useful role in the Democratic presidential fray of sharply defining issues and taking positions many rank-and-file Democrats privately say they support but fear are too provocative.

The right to marry is a civil right that should not be denied, Kucinich said in a statement. I support federal legislation for civil marriage between same-sex couples. Civil unions do not provide equal rights to lesbian, gay, bisexual and transgender Americans.

He added, Civil unions are a kind of limbo with regard to governmental functions such as taxation, pension protections and provision of insurance for families.

A SHOT AT DEAN

Kucinich’s reference to civil unions was aimed directly at Dean, who as Vermont governor signed the nation’s first civil unions law, which gives gay couples the same rights as heterosexual couples.

For some activists Dean’s civil unions law is an unsatisfying half-measure. Democratic presidential contender the Rev. Al Sharpton has compared it to saying we’ll give blacks or whites or Latinos the rights to shack up but not marry.


Dean issued a statement Tuesday that praised Massachusetts for, as he saw it, following Vermont’s wise leadership.

The Massachusetts Court appears to have taken a similar approach to the Vermont Supreme Court and its decision that led to our civil unions law, he said.

Dean did not answer the question of whether Massachusetts should allow marriage between same-sex couples. He implied that the exact legal mechanism did not matter too much. One way or another, the state should afford same-sex couples equal treatment under law in areas such as health insurance, hospital visitation and inheritance rights, he said.

Other Democratic contenders were careful to voice disapproval of marriages between same-sex couples even as they affirmed their support for equality.

Massachusetts Sen. John Kerry said, "I continue to oppose gay marriage," but he also said he believed that "gay men and lesbians should be assured equal protection and the same benefits from health to survivor benefits to hospital visitation that all families deserve."

Connecticut Sen. Joe Lieberman also noted, "I am opposed to gay marriage," but added, "I have also long believed that states have the right to adopt for themselves laws that allow same-sex unions."

Lieberman, Dean and Rep. **** Gephardt warned of GOP attempts to exploit the issue. Gephardt cautioned voters, "Don’t get side-tracked by the right-wing into a debate over a phony constitutional amendment banning gay marriage."

But were the Democrats perhaps warning about something that might ultimately benefit them? For every rural Southern district the Democrats worry about, there is a suburban district Republicans fear losing places such as Montgomery County, Pa.

The best outcome for the Democrats might be for the Republicans to over-reach, to appear to be pushing the constitutional amendment in a gratuitous exercise.

All this might be moot if the legal controversy were confined to the state of Massachusetts. And due to Bill Clinton there’s a legal mechanism, for confining it: The Defense of Marriage Act, or DOMA signed into law by Clinton in 1996 says states can refuse to recognize same-sex marriages performed in other states.

(Lieberman and Gephardt voted for DOMA, while Kerry voted against it.)

But some legal scholars wonder whether DOMA would be held to be constitutional by the courts, and some gay rights advocates have promised litigation to overturn DOMA.

If elected president, Dean has vowed, he would, "do everything in my power" to repeal DOMA.


Politicians, as a rule hate divisive issues, if they do not profit from the divisions. I don't see this issue as helping the democrats at this time, particularly Dean's comment about DOMA. He now has to explain what has changed so much since Clinton, a democratic president signed the bill.

'Nice, to see this issue pull out all the Dems and what they really believe.