New American revolution launched in Boston
In an opinion without precedent at the appellate court level in the United States, the Supreme Judicial Court of Massachusetts ruled 4-3 on November 18 that same-sex couples in that state are entitled to participate in the institution of civil marriage.
The high court, following the lead of the Court of Appeals of Ontario, Canada last spring, gave the state legislature 180 days from the date the judgment is formally entered to conform Massachusetts marriage laws to the opinion.
Chief Justice Margaret H. Marshall’s opinion for the court in the case of Goodridge v. Department of Public Health appeared completely unequivocal in holding that same-sex partners in Massachusetts are entitled to get married, although opponents of same-sex marriage will likely try to persuade the legislature that it can comply with this decision by passing a Civil Union Act, similar to the one enacted in Vermont. Civil unions were enacted in Vermont in 2000 after that state’s highest court ruled in 1999 that depriving same-sex partners of the rights and benefits of marriage violated a provision of the state constitution.
But the Massachusetts and Vermont cases are clearly distinguishable in this regard.
In Vermont, the plaintiffs asked the court to determine whether it violated the “equal benefits” provision of the state constitution to deprive same-sex partners of the rights and responsibilities of marriage. The court said that it would satisfy the state constitution if the legislature came up with a mechanism for allowing same-sex partners to enjoy the same rights and responsibilities under state law that opposite-sex partners enjoy. The Civil Unions Act was the result.
In the Massachusetts case, the plaintiffs sought marriage itself, not just the rights and benefits attached to the institution, and framed their question to the court as whether it violates the state’s constitution to deny them the ability to marry. The court answered in the affirmative.
Seven same-sex couples applied for marriage licenses in 2001, were turned down, and then filed their lawsuit in the state superior court, before Judge Thomas Connolly, represented by Mary Bonauto of Boston’s Gay and Lesbian Advocates and Defenders (GLAD), a public interest law firm. Connolly granted the state’s motion for summary judgment last year, finding that Massachusetts could rationally limit the right to marry to opposite-sex couples due to the inability of same-sex couples to procreate through sexual intercourse.
The case went directly to the state’s highest court, without consideration at the intermediate appellate level.
The seven-member court heard arguments on March 4. An opinion was expected as early as this past July, but informed speculation later suggested that a ruling would not come out until after a scheduled joint constitutional session of the state legislature. Last week, legislators deferred consideration of a proposed constitutional amendment restricting marriage to opposite-sex couples until next spring.
The court was sharply split.
Marshall wrote for the four-member majority, but Justice John M. Greaney issued a separate concurring opinion, adopting a slightly different constitutional theory for the court’s conclusion. Justices Francis X. Spina, Martha B. Sosman, and Robert J. Cordy each wrote dissenting opinions, each of which all three signed.
The court’s constitutional analysis considered two somewhat overlapping questions—whether denying same-sex partners access to marriage violates their rights to due process and liberty and whether it violates guarantees of equality under the law. An underlying question was whether that law was appropriate for the court, through constitutional interpretation, to make a fundamental change in a major social institution, rather than leaving the issue to legislative reform. This was the main dividing line between the majority and the dissenters, who each argued vociferously that only the legislature, reflecting the popular will, could properly decide state marriage law.
The majority determined that the question was properly before it for resolution, and that the constitutional limitations on the state’s power dictated a finding for the plaintiffs. Marshall extensively reviewed the nature of civil marriage, the numerous ways that it benefits those with access to it, and its important social role.
“Without question,” the chief justice wrote, “civil marriage enhances the ‘welfare of the community.’ It is a ‘social institution of the highest importance.’ Civil marriage anchors an ordered society by encouraging stable relationships over transient ones. It is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for and supported whenever possible from private rather than public funds, and tracks important epidemiological and demographic data.”
Describing the benefits of marriage as “enormous, touching nearly every aspect of life and death,” and emphasizing that the children of a married couple “are also directly or indirectly, but no less auspiciously, the recipients of… special legal and economic protections,” Marshall pointed out “that marital children reap a measure of family stability and economic security based on their parents’ legally privileged status that is largely inaccessible, or not as readily accessible, to nonmarital children.”
“Without the right to marry—or more properly, the right to choose to marry—one is excluded from the full range of human experience and denied full protection of the laws for one’s ‘avowed commitment to an intimate and lasting human relationship,’” Marshall asserted.
The court found that earlier decisions by courts striking down laws against interracial marriage, among other precedents, established that there is a constitutionally grounded right to marry. After noting that the Massachusetts courts have found their state constitution to provide broader protection for individual liberty than the federal constitution, Marshall quoted a 1912 state high court opinion that “Absolute equality before the law is a fundamental principle of our own Constitution.”
“The liberty interest in choosing whether and whom to marry would be hollow if the Commonwealth could, without sufficient justification, foreclose an individual from freely choosing the person with whom to share an exclusive commitment in the unique institution of civil marriage,” she concluded.
The three justices who signed Marshall’s opinion found that the state’s justifications for excluding same-sex couples from civil marriage did not meet even the lowest standard for judicial review—a rational basis. The state had argued that the exclusion was based on the need to provide a “favorable setting for procreation,” to ensure the optimal setting for child rearing, defined as “a two-parent family with one parent of each sex&Mac226;” and to preserve “scarce State and private financial resources.”
Marshall rejected each of these in turn, in an argument that echoed those of the Ontario Court of Appeals from last spring.
Noting Connolly’s finding in the superior court ruling that “marriage’s primary purpose is procreation,” Marshall bluntly asserted, “This is incorrect. Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family.”
“If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means,” she wrote. “The attempt to isolate procreation as ‘the source of a fundamental right to marry’ overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing.”
Marshall was equally dismissive of the state’s contention that the ban “ensures that children are raised in the ‘optimal’ setting.” The Massachusetts courts have taken a leading role over the past decade in establishing the right to second-parent adoptions, among other reforms on gay parenting, casting this argument as contradictory to the state’s own policies.
Marshall also argued that the state “has offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to enter into opposite-sex marriages in order to have and raise children. There is thus no rational relationship between the marriage statute and the Commonwealth’s proffered goal of protecting the ‘optimal&Mac226; child-rearing unit.’”
Instead, Marshall wrote, the ban deprives children being raised by same-sex partners of the benefits and protections that their parents’ marriage would bring to them.
“In this case,” wrote Marshall, “we are confronted with an entire, sizable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. 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.”
Turning to the main arguments of the dissent, Marshall rejected the contention that this was a question that must be left to the legislature.
“To label the court’s role as usurping that of the Legislature is to misunderstand the nature and purpose of judicial review,” she wrote. “We owe great deference to the Legislature to decide social and policy issues, but it is the traditional and settled role of the courts to decide constitutional issues.”
Twice, Marshall invoked the U.S. Supreme Court’s recent Lawrence sodomy decision; first to observe that it is the court’s role to decide constitutional issues, not to establish moral codes; and then to note the federal constitutional protection for intimate associations. However, the Massachusetts court’s decision is firmly grounded on state constitutional law, so it is not subject to review by the U.S. Supreme Court.
On the issue of remedy, a majority of the justices evidently concluded that the implementation of its declaration that the existing marriage law’s exclusion of same-sex couples from marrying violated the state constitution was a legitimate legislative function. Invoking the approach taken in Ontario, the court stated that it would “construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others,” and would give the legislature time to incorporate this construction into state law.
“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,” Marshall wrote.
It appears that if the legislature does not make the necessary changes in 180 days, a judgment will be entered declaring the exclusion unconstitutional and any same-sex couple that applies for a marriage license and is turned down would have a clear basis to seek immediate injunctive relief.
In his concurring opinion, Justice Greaney argued in a manner reminiscent of the ten-year old decision by the Hawaii Supreme Court, later overturned by a voter referendum, that the ban on same-sex marriage is a clear case of sex discrimination, specifically forbidden by the Massachusetts constitution.
The dissenters sounded common themes, arguing that the decision to change a basic social institution such as marriage should be made by the legislature, not the courts. Justice Spina argued that the current law does not discriminate against anyone. Gay people can get married, as long as they can find an opposite-sex partner to marry. Justice Sosman harped on the lack of conclusive social science data that proves that being raised by same-sex parents is just as good as being raised by opposite-sex parents.
What was refreshing, however, was that by comparison to the anti-gay fulminations of U.S. Supreme Court Justice Antonin Scalia in his dissents in the sodomy and Colorado Amendment 2 cases, none of these dissenting Massachusetts justices demonized gay people or invoked the specter of culture wars. The dissenters’ tone was respectful, and Justices Sosman and Cordy in particular articulated sympathy for the deprivations gay people face by being excluded from marriage.
The decision was the vindication of a strategy, developed by the lesbian and gay rights litigation groups in the wake of the initial 1993 victory on marriage in Hawaii, to take on one major test case at a time, proceeding step–by–step through various jurisdictions based on a thorough evaluation of the local legal and political culture to maximize the possibility of success.
The Hawaii case was begun by the individual plaintiffs against the advice of gay litigation groups, who only became involved in the case after the state supreme court returned it to the trial court, at which point Lambda Legal Defense and Education Fund became co- counsel. The first marriage case initiated by the gay rights groups was GLAD’s Vermont case, based on peculiarly helpful constitutional language in Vermont, a hospitable legal climate, and the conclusion that there would be substantial popular and political support for same-sex marriage in the state as a result of significant public education.
After the partial victory in Vermont produced the Civil Union Act, GLAD and Lambda each initiated new test cases, GLAD in Massachusetts and then Lambda in New Jersey.
The reaction of the New Jersey appellate courts to the Massachusetts ruling will be an important indicator of whether this incremental strategy is working. A trial judge in New Jersey recently granted the state’s motion for summary judgment and the case is now pending before the Appellate Division.