Original pro-marriage majority says “separate seldom, if ever, equal”
By the same 4-3 vote that ruled in Goodridge v. Department of Public Health on November 18 that refusing to let same-sex couples marry violates the Massachusetts constitution, that state’s highest court told the Massachusetts Senate on February 3 that a proposed civil unions bill that would allow same-sex partners all the same rights and responsibilities under state law as married couples but not call themselves “married” would not satisfy the state’s constitutional requirements.
In effect, the court told the Senate that when it said “marriage,” it meant “marriage”––not civil unions.
The Massachusetts constitution allows the legislature or the governor to request advisory opinions from the state’s highest court on “important legal questions.” The Senate had asked the court to advise on whether a civil union bill that would provide access to the same state law rights for civil unions and marriages, while banning same-sex marriage, would be constitutional. When the court issued an open call for amicus briefs, there was speculation that the narrow 4-3 majority might not hold in the face of political controversy.
But the majority held firm, the same four members agreeing in Chief Justice Margaret Marshall’s opinion that this is about more than the name given to the relationship.
“The constitutional difficulty of the proposed civil union bill is evident in its stated purpose to preserv(e) the traditional, historic nature and meaning of the institution of civil marriage,” wrote Marshall. “Preserving the institution of civil marriage is of course a legislative priority of the highest order, and one to which the Justices accord the General Court [the state legislature’s official name] the greatest deference. We recognize the efforts of the Senate to draft a bill in conformity with the Goodridge opinion. Yet the bill, as we read it, does nothing to ‘preserve’ the civil marriage law, only its constitutional infirmity. This is not a matter of social policy but of constitutional interpretation. 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.”
Thus, the court found that there was no rational basis to create a parallel institution of civil unions.
“The history of our nation has demonstrated that separate is seldom, if ever, equal,” wrote Marshall, suggesting that the legislature meant to signal that civil unions were in some sense inferior to marital ones.
Marshall pointed out that the “absolute prohibition” on using the word “marriage” for a same-sex couple “is more than semantic,” and that, as the Goodridge opinion had observed, marriage was about more than just legal rights and responsibilities. It is a social status as well, and has intangible aspects to it that would not be replicated in a civil union bill.
In a separate opinion joined by Justice Francis X. Spina, Justice Martha Sosman suggested that this was all a semantic quibble, and that so long as the civil union status carried the same state-law rights as marriage, there was really no equal protection issue at all. She suggested that it was rational for the state to create a separately-named status for same-sex couples, since their relationships would not be recognized by the federal government or other states that had passed their own Defense of Marriage Acts (DOMA).
What went entirely unmentioned in Sosman’s opinion was the possibility that the federal DOMA is unconstitutional.
A same-sex couple married in Canada or the Netherlands might try to challenge DOMA, but no international treaty obligation binds the United States to recognize marriages from foreign countries. If a same-sex couple is legally married within the U.S., they would be well situated to sue to vindicate their federal equal protection rights to participate in programs and receive benefits. Either Sosman was being disingenuous in making her argument or she had overlooked one of the reasons why the distinction between marriage and civil union is not a trivial one for those who have been excluded from access to marriage.
Justice Robert Cordy, another Goodridge dissenter, pointed out, as had Sosman, that the issue in Goodridge was whether Massachusetts could exclude same-sex couples from access to the entire panoply of marriage rights under state law, while now the question was whether it was rational for the state to create a separate status to confer access to all those rights on same-sex couples, which he saw as different questions. He felt it was premature to answer that question in an advisory opinion.
The highest state court having spoken, the ball is back in the legislature’s hands. They have until mid-May to decide whether any state statutes need to be modified to comply with the Goodridge opinion, which, according to Chief Justice Marshall, is all they are entitled to do at this point.