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Freedom Rings Some More

The Massachusetts Supreme Court points the state in the direction of equality in marriage - but what will happen next is still very much up in the air.

The Massachusetts Supreme Court  rules that under their state constitution gay and lesbian couples have a right to marry.  They do not go so far as to order the state to begin issuing marriage licenses, but instead gave the legislature 6 months to address the inequity.


The Massachusetts Supreme Court, in a close 4-3 decision,  issued a ruling November 18, 2003, that same-sex couples are legally entitled to wed under the state constitution and ordered the legislature to come up with a solution within 180 days.

Strikingly similar to the decision previously handed down in Vermont that ultimately resulted in its legislature creating a parallel system of "Civil Unions" that were identical in almost every way to providing the rights, privileges, and obligations granted married couples under Vermont law.

The decision left no doubt as to the intent of the Court,  ''Marriage is a vital social institution.  The exclusive commitment of two individuals to each other nurtures love and mutual support.  It brings stability to our society,'' wrote Chief Justice Margaret Marshal who continued to describe the legal benefits to marriage,  "For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. In return, it imposes weighty legal, financial, and social obligations.'' 

And further pointed out the fundamental unfairness of a lack of equal treatment, ''Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family - these are among the most basic of every individual's liberty and due process rights," continuing,  ''And central to personal freedom and security is the assurance that the laws will apply equally to persons in similar situations.''

The ruling also included this powerful statement, ''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.''

Also like Vermont however, the Court did not insist that gay and lesbian couples be allowed to marry under Massachusetts law, merely that there be some solution to their legal right to do so.  Sound confusing? It is, and basically boils down to this:

  1. Court says under Mass laws gays and lesbians have right to marry
  2. Court will not order marriage licenses to be issued to same sex couples
  3. Court does order state legislature to come up with viable means to address this right and gives them 180 days in which to do so

Of course, the Massachusetts legislature is already scurrying  in the hopes of amending the state constitution to legally define marriage as between a man and a woman, but a similar measure was defeated in 2002.  

The Governor of Massachusetts has already said he is opposed to marriage for same-sex couples, and has publicly stated he would veto any gay marriage legislation.  At the same time he is cognizant of the benefits inherent in the recognition of these relationships and supports some domestic partner benefits such as inheritance and hospitalization rights.

His response to the ruling was more specific, ''Marriage is an institution between a man and a woman. I will support an amendment to the Massachusetts Constitution that makes that expressly clear. Of course, we must provide basic civil rights and appropriate benefits to nontraditional couples, but marriage is a special institution that should be reserved for a man and a woman.''

However, vetoing legislation that might be created in response to a Court ruling is easier said than done.

But even before that question is raised, time will first tell if the Massachusetts legislature will say, "Yes, our Constitution supports equality, it is time for us to implement it for our gay and lesbian citizens who wish to marry," or if they will pander to those who think that equal rights means liberty and justice only for those who are exactly like them and believe exactly as they  do.

In pride,


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Drop a note to Deborah at gaylesissues@rslevinson.com

copyright 1986-2010 Deborah Levinson