LEGAL LINES by LENNIE

? Ellen W. Gerber, Attorney at Law

 

MASSACHUSETTS: THE DECISION & ITS MEANING

 

The Decision  In the case of Goodridge v. Department of Public Health, the Supreme Judicial Court of Massachusetts rendered its momentous decision that gays and lesbians are entitled to a obtain a license to marry each other. The court said: AThe Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens....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 court did a beautiful job of demolishing the major arguments against gay marriage, presented by the Commonwealth (and all the other opponents that we hear from day by day). As to the argument that marriage's primary purpose is procreation, the court noted that the state=s marriage laws Acontain 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 cannot stir from their deathbed may marry.@

 

The second argument often raised is that confining marriage to opposite-sex couples ensures that children are raised in the "optimal" setting, with a mother and a father. The court noted that there no longer is such a thing as a typical American family and children today are raised in every setting. Forbidding marriage to gays does nothing to prevent their raising children together. Most importantly, Athe task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws.@ The court then detailed numerous legal protections that are denied to children if their parents are not married to each other.

 

Finally, the court dealt directly with the alleged Athreat@ to marriage. It said:  ARecognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race. If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.@


 

What the Decision Means  The last sentence of the opinion states: AEntry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.@ This is exactly what the Vermont Supreme Court did and the legislature responded by creating civil unions. However, many legal experts have stated that the Massachusetts court did not leave wiggle room for civil unions. They say that the legislature will have no choice but to amend the marriage licensing statute to permit same-sex couples to obtain licenses. It appears that in six months, lesbians and gays who live in Massachusetts will have the right to a civil marriage. Religious institutions each can choose whether or not to perform such marriages.

 

Will a Massachusetts gay marriage be recognized by the federal government? Initially, no. DOMA (the federal Defense of Marriage Act) defines marriage as Aa legal union between one man and one woman as husband and wife.@ So every statute and rule that gives a benefit to married people, including taxes, social security and approximately 1000 other laws, by definition denies that benefit to lesbians and gays. Eventually the US Supreme Court will decide whether that statute is constitutional.

 

Will a Massachusetts gay marriage be recognized in other states? Ordinarily, all states are required by the Afull faith and credit@ clause of the Constitution to recognize the decrees of another state, including marriage and divorce decrees. However, the federal DOMA contains a clause that says: ANo State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . . or a right or claim arising from such relationship.@

 

If that provision of DOMA is upheld, then states would have the option of recognizing gay marriages. Of the 37 states that have enacted their own DOMA law, only 27 have language that denies recognition of same-sex marriages solemnized in other states. (That includes North Carolina.) Three additional states merely state that same-sex marriage is not aligned with state public policy. Legal experts argue that states do not have to give full faith and credit to laws that are in conflict with their public policy. So, it appears that there are 20 states that have not formally opposed the recognition of gay marriage and probably would recognize it.

 

It also is possible that the US Supreme Court, even if it upheld DOMA, would strike down the provision about full faith and credit. Over the years, the court basically has held that there are no exceptions to full faith and credit. So, the recognition fight will take place in both state and federal courts, hopefully in well chosen cases with experienced attorneys, in coordination with national legal organizations such as Lambda, the National Center for Lesbian Rights (NCLR) and the ACLU.

 


 

What Can the Opponents Do?  In Massachusetts, the opponents are gearing up to try to enact an amendment to the state constitution. That process requires enactment in 2 successive legislative sessions, followed by a referendum of the people of the state. It appears that the earliest date such a referendum could be held is November 2006. In the meantime, hundreds or thousands of gay marriages will have taken place and, hopefully, the citizens of Massachusetts will see that no harm has come to their marriages.

 

The Republicans have been talking up a federal constitutional amendment and one has been introduced in both house of Congress. Here=s the process: The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. (None of the 27 amendments to the Constitution have been proposed by constitutional convention.) If and when Congress passes such an amendment, it must be ratified by three-fourths of the States (38 of 50 States). Congress normally will put a time limit (typically seven years) for the bill to be approved as an amendment.

 

In my own opinion, I think it will be difficult to achieve the passage of such an amendment. Remember the Equal Rights Amendment (ERA)? It never achieved ratification, even though Congress extended the time period. Again, time is on our side. By the time such an amendment made the rounds of the states, gay marriage will be a fait accompli. In itself, that fact will deter ratification in many states. Moreover, by then the New Jersey Supreme Court will have ruled on the issue. This liberal court is likely to follow the example of Massachusetts and Ontario, Canada. Each such action will add to the difficulty of ratification. So, everyone, we=re on our way and good luck to us all.