Well. My, my, my. How things do change.
Boston.com / News / Local / Mass. / SJC: Gay marriage legal in Mass.(Boston Globe, 11/18/23): The Supreme Judicial Court today became the nation's first state supreme court to rule that same-sex couples have the legal right to marry. "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," Chief Justice Margaret Marshall wrote in the 4-3 decision. The ruling won't take effect for 180 days in order to allow the Legislature "to take such action as it may deem appropriate in light of this opinion," the court ruled in its 50-page decision. Since the SJC is the ultimate authority on the state constitution, however, the Legislature cannot overturn today's decision -- nor would the US Supreme Court agree to interpret a state's constitution. Opponents could fight for a constitutional amendment, but the soonest that could be placed on the ballot is 2006. The Legislature has already been considering several bills, including one that would allow gay marriage, that would grant benefits to same-sex couples.
It will be interesting to see what comes of this. Or rather, how long it takes; what's going to come is relatively certain. Even if the soonest a constitutional amendment could be placed on the ballot is 2006, there will be an attempt to do so. However, because it will be three years before anyone could possibly vote on it, that may well be enough time for people in Massachusetts to realize that, no, the republic hasn't fallen, allowing gays to marry hasn't somehow made straight marriage anything less than what it was, and that everyone can survive.
Or perhaps not.
The actual text of the decision (PDF; Adobe Acrobat Required, and a full 160 pages long, thanks awfully) is rather fascinating. It uses Lawrence v Texas as one of the bases for its decision (thus explaining, at least in part, the unexpectedly long delay in announcing the decision), and following along those lines, seems to have based its decision in the fundamental liberty interest found in the Massachusetts state constitution: Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law. The Supreme Judicial Court does recognize that the original intent of the law was to restrict marriage to one man and one woman; they simply decide that doing so, when it comes to same-sex couples, was an unlawful exercise of the state's authority.
Interestingly, the SJC explicitly rejected the assertion that the primary purpose of marriage was "procreation": 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. General Laws c. 207 contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married. [...] While it is certainly true that many, perhaps most, married couples have children together (assisted or unassisted), it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage. By contrast, in rejecting the right to same sex marriage, the Arizona Court of Appeals explicitly used those grounds in Standhardt and Keltner v. State of Arizona (PDF file, a mere 34 pages in comparison to Massachusetts' 160): Petitioners more persuasively argue that the State’s attempt to link marriage to procreation and child-rearing is not reasonable because (1) opposite-sex couples are not required to procreate in order to marry, and (2) same-sex couples also raise children, who would benefit from the stability provided by marriage. However, as the State notes, “[a] perfect fit is not required” under the rational basis test, and we will not overturn a statute “merely because it is not made with ‘mathematical nicety, or because in practice it results in some inequality.’” (P. 25 of the decision) Interestingly, in the footnotes for that paragraph, the Arizona Court of Appeals notes a raft of decisions that explicitly reject the "procreation" argument; essentially, the Arizona court's position boils down to, "We're accepting the procreation argument because we want to, and we're using the least rigorous test of the state's interest in regulating association between consenting adults because it's the only one that allows us not to look too closely at what we're doing. So there. Nyah!"
It will be interesting to see what the Massachusetts legislature does with the 180-day stay, aside from push forward the state constitutional amendment. I suspect -- just suspect, mind -- that they may find themselves somewhat paralyzed. The language of the decision means that the legislature really can't simply push a basic law forward saying, "Marriage is between one man and one woman forever and ever amen." Anything other than a law specifically authorizing same-sex marriage is likely to be struck down by the court as unresponsive to the decision -- they have already stated that . (I'm not entirely sure why you would need any such law, given the decision, or what indeed the legislature could be expected to do during that 180 days that would make a significant difference. The only thing I can imagine is that if a constitutional amendment defining marriage does get pushed out of the legislature and onto the 2006 ballot, the SJC may stay the effect of its decision until after the 2006 vote, so that you then don't have all sorts of legal relationships being nullified by the amendment.
In any event, the next step is likely going to come from the federal government (the Massachusetts legislature adjourns for the year tomorrow). On the one hand, we have the reintroduction of the Federal Marriage Amendment into this session of Congress (sponsored by 97 representatives), where it sits quietly (for the moment) in the Subcommittee on the Constitution, awaiting action. Although the FMA is a nice simple two sentence amendment, it is entirely possible that when/if enacted (and I do think that the applicable term is likely when), it may well overturn not only the Massachusetts supreme court's reading of that state's constitution, but also Vermont's civil unions act, California's domestic partners act (assuming it survives -- see below) Hawaii's domestic partnership act, and various city and county domestic partnership acts.
Constitutional Amendment - Declares that marriage in the United States shall consist only of the union of a man and a woman. Prohibits the Constitution or any State constitution, or State or Federal law from being construed to require that marital status or its legal incidents be conferred upon unmarried couples or groups.
The question is what, precisely, "construed to require" means. It can mean merely that states can't be forced by the courts to allow the "legal incidents" of marriage to those whom the federal government does not recognize to be married. On the other hand, it can be construed to mean that where the state has granted such marriage and/or its "legal incidents", such grants will perforce be overturned. One suspects that, when it comes up for debate, the sponsors will make certain to get that interpretation into the legislative record, so that courts will have some textual support in reading it that way.
On the other hand, we also have the State Regulation of Marriage Is Appropriate Act (cosponsored by Barney Frank and three others, which may give an idea of how much support it's going to get). In that helpfully useless way of legislation, the entire text of the act is as follows:
A BILL
To amend title 1, United States Code, to eliminate any Federal policy on the definition of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `State Regulation of Marriage Is Appropriate Act'.
SEC. 2. ELIMINATION OF FEDERAL POLICY ON THE DEFINITION OF MARRIAGE.
(a) IN GENERAL- Title 1, United States Code, is amended by striking section 7.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of such title is amended by striking the item relating to section 7.
Really, that just tells you everything you need to know, doesn't it?
For the US Code impaired (that is, everyone outside the lawyers in Congress), the House of Representatives provides a handy dandy US Code search engine. (For some reason, nobody just lists out the titles and lets you wander through. Then again, it is massive.) So, herewith, 1 USC Sec. 7:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ''marriage'' means only a legal union between one man and one woman as husband and wife, and the word ''spouse'' refers only to a person of the opposite sex who is a husband or a wife.
In other words, they're trying to repeal the Federal Defense of Marriage Act. Oh, yeah, that'll work. The four people trying to get rid of DOMA will easily persuade the 97 who think that marriage is between one man and one woman so help them god. Yep. Sure they will, you betcha.
DataLounge keeps a page tracking marriage related issues. It's alternately encouraging and depressing; for every step toward true civil marriage for all, there usually seems to be an accompanying step backward. On the down side, Arizona and New Jersey's lower courts have specifically if speciously rejected any same sex marriages; Hawaii and Alaska's supreme courts rule that the state has no compelling interest in barring same sex marriage, so the legislature promulgates and the people pass constitutional amendments defining marriage, placing that issue beyond the reach of the courts. California passes a domestic partners law (which does not, however, take effect until 2005); their new governor states that he would not have signed it, and a petition is now circulating to put a repeal position onto the March 2004 primary ballot. Michigan is considering an amendment to its constitution. On the (theoretically) up side, Wisconsin's governor vetoed what he considered a "mean-spirited" attempt to define marriage, but then, they already had a state defense of marriage act.
Bush criticizes state ruling on gay marriage; Republicans call for constitutional amendment (SFgate.com/AP; 11/18/2003): President Bush criticized Tuesday's ruling by Massachusetts' highest court striking down the state's ban on same-sex marriage and said he would work with Congress to "defend the sanctity of marriage."
"Marriage is a sacred institution between a man and a woman," Bush said in a statement released shortly after he arrived in London for a state visit. He said the ruling by the Massachusetts Supreme Judicial Court "violates this important principle." [...] Bush has said in the past that he supports strengthening the federal definition of marriage as a solely man-woman union. But he has declined to endorse a constitutional amendment banning gay marriage and his statement Tuesday gave no specifics of how he believes that stronger definition should be accomplished. "I will work with congressional leaders and others to do what is legally necessary to defend the sanctity of marriage," he said.
Of course, civil marriage isn't actually sanctified, is it? It's a state-sanctioned act, and therefore cannot technically be "sanctified". Not that such niceties make the least difference to our theocratically inclined government ... er, pardon me, to our civic leaders, who could give, at most, two figs about the whole "separation of church and state" thing.
You know, it would be lovely if our highest elected officials, who theoretically should know something about the law of the land, could distinguish between civil marriage -- and the SJC was extremely careful to specify that they were only discussing civil marriage -- and religious marriage, over which the state has no direct control. Unfortunately, by allowing religious figures to conduct binding legal marriage, we've only confounded this issue. In theory, we could clear this right up by utterly and completely separating civil and religious marriage. When you go to City Hall to be married, there should be no little ceremony, no celebration, absolutely nothing indicating any sort of solemnization of the marriage; you simply complete the paperwork, and you're done. Ministers and the like should be flatly forbidden from doing any sort of civil paperwork in the church or at the time/on the day of the religious wedding itself. I'm not proposing stripping "justice of the peace" functions from ministers; merely making it absolutely clear that, if the state must have a role in marriage, it is utterly and entirely separate from that role played by religion. Unfortunately, the innovation of the separation of Church and State is extraordinarily recent, as civilization goes, and nobody in power really believes that it should be entirely separate (at least, not as long as it's their church that's being melded in). So there is unfortunately little chance that jurisdictions will adopt policies forcibly separating the civil and religious institutions.
Posted by iain at November 18, 2003 04:44 PM
