Mass. court: Ban _on gay marriage unconstitutional
BOSTON – In the nation’s most far-reaching decision of its kind, Massachusetts’ highest court declared Tuesday that the state constitution guarantees gay couples the right to marry – a ruling celebrated with a popping of champagne corks and the planning of spring weddings.
“Without a doubt, this is the happiest day of our lives,” said Gloria Bailey, who with her partner of 32 years was among the seven gay couples who had sued the state in 2001 for refusing to issue them marriage licenses.
In its 4-3 decision, the Supreme Judicial Court gave the Legislature six months to rewrite the state’s marriage laws for the benefit of gay couples.
Although courts in other states have issued similar rulings, some legal experts said this one goes further in its emphatic language and appears to suggest that gay couples should be offered nothing less than marriage itself – and not a lesser alternative such as civil unions, which are available in Vermont.
The ruling was another milestone in a year that has seen a significant expansion of gay rights around the world, _including a U.S. Supreme Court decision in June striking a Texas ban on gay sex. Canadian courts also legalized gay marriage over the summer.
“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.
The dissenting justices argued that the court was treading on lawmakers’ territory. “Today, the court has transformed its role as protector of rights into the role of creator of rights, and I respectfully dissent,” Justice Francis Spina wrote.
The decision prompted complex legal questions about the next step and about when the nation’s first gay marriage licenses will be issued, if ever.
Republican Gov. Mitt Romney denounced the ruling but said there is little the state could do beyond pursuing a constitutional amendment.
“I agree with 3,000 years of recorded history. I disagree with the Supreme Judicial Court of Massachusetts,” he said. “Marriage is an institution between a man and a woman . . . and our constitution and laws should reflect that.”
But the soonest a constitutional amendment could be put on the ballot is 2006, potentially opening a window of a few years in which gay marriage licenses could be granted.
Vermont’s high court issued a similar decision in 1999, but told the Legislature that it could allow gay couples to marry or create a similar institution that confers all the rights and benefits of marriage. Lawmakers chose the second route, leading to the approval of civil unions in that state.
The Massachusetts decision makes no mention of such an alternative, and instead points to a recent decision in Canada that changed the common-law definition of marriage to include same-sex couples and led to marriage licenses being issued there.
The state “has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples,” the court wrote, adding that denying gays the right to marry deprives them “of membership in one of our community’s most rewarding and cherished institutions.”
Still, legal experts pointed out that the wording leaves it unclear whether the court would accept an alternative to marriage.
“It’s poorly drafted in that they are going to create all of this controversy about what they meant,” said Paul Martinek, editor of Lawyers Weekly USA.
The Human Rights Campaign, a national gay rights organization, said the Massachusetts decision goes beyond Vermont by saying that it is unconstitutional to bar gay couples from the institution of marriage, and not just the accompanying benefits – such as hospital visitation and inheritance rights.
The federal government and 37 states have adopted laws defining marriage as a union between a man and a woman – assuring legal battles over whether gay marriages performed here will be recognized outside the state.
In the 1990s, Hawaii’s Supreme Court ruled that a ban on gay marriage might be unconstitutional, but state lawmakers amended the constitution before same-sex weddings were allowed. Similarly, a trial court in Alaska ruled in favor of same-sex marriages, but the Legislature amended the constitution to ban them.
Without any pressure from a court, California’s Legislature passed a law signed by Gov. Gray Davis this summer that avoided using the term “marriage” but granted gay couples who register as domestic partners most of the rights and responsibilities of spouses.
Massachusetts Rep. Barney Frank, who is openly gay, said the decision “will enhance the lives of probably thousands, maybe tens of thousands, of Massachusetts citizens, and will have no negative effects on anyone else.”
House Speaker Thomas Finneran, a Boston Democrat opposed to gay marriages, said he would reserve comment on the decision until after reviewing it. Finneran is perhaps the most powerful politician in the state, and he could set the course for the debate.