MEANWHILE, IN MASSACHUTES ...

Bob McDob · Post by **Bob McDob** » 2004-02-04 02:26pm

http://story.news.yahoo.com/news?tmpl=s ... y_marriage

Mass. High Court Rules for Gay Marriage

By JENNIFER PETER, Associated Press Writer

BOSTON - The Massachusetts high court ruled Wednesday that only full, equal marriage rights for gay couples — rather than civil unions — are constitutional, clearing the way for the nation's first same-sex marriages in the state as early as May.

"The history of our nation has demonstrated that separate is seldom, if ever, equal," the four justices who ruled in favor of gay marriage wrote in the advisory opinion requested by the state Senate.

After seven gay couples sued in 2001, the Supreme Judicial Court ruled in November that gay couples have a constitutional right to marry, and gave the Legislature six months to change state laws to make it happen.

But the vague wording of the ruling left lawmakers — and advocates on both sides — uncertain if Vermont-style civil unions would satisfy the court's decision.

The Massachusetts court said any civil unions bill that falls short of marriage would establish an "unconstitutional, inferior, and discriminatory status for same-sex couples."

The state Senate asked for more guidance from the court, whose advisory opinion was made public Wednesday morning when it was read into the Senate record.

The much-anticipated opinion sets the stage for next Wednesday's constitutional convention, where the Legislature will consider an amendment that would legally define marriage as a union between one man and one woman. Without the opinion, Senate President Robert Travaglini had said the vote would be delayed.

The soonest a constitutional amendment could end up on the ballot would be 2006, meaning that until then the high court's decision will be Massachusetts law no matter what is decided at the constitutional convention.

"We've heard from the court, but not from the people," Gov. Mitt Romney said in a statement. "The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage."

Travaglini said he wanted time to talk with fellow senators before deciding what to do next.

"I want to have everyone stay in an objective and calm state as we plan and define what's the appropriate way to proceed," Travaglini said.

Conservative leaders said they were not surprised by the advisory opinion, and vowed to redouble their efforts to pass the constitutional amendment.

Mary Bonauto, an attorney who represented the seven couples who filed the lawsuit, said she anticipated a fierce battle, saying that "no matter what you think about the court's decision, it's always wrong to change the constitution to write discrimination into it."

When it was issued in November, the 4-3 ruling set off a firestorm of protest across the country among politicians, religious leaders and others opposed to providing landmark rights for gay couples to marry.

President Bush (news - web sites) immediately denounced the decision and vowed to pursue legislation to protect the traditional definition of marriage. Church leaders in the heavily Roman Catholic state also pressed their parishioners to oppose efforts to allow gays to marry.

And legislators were prepared to vote on a proposed amendment to the state constitution that would seek to make the court's ruling moot by defining as marriage as a union between one man and one woman — thus expressly making same-sex marriages illegal in Massachusetts.

What the case represented, both sides agree, was a significant new milestone in a year that has seen broad new recognitions of gay rights in America, Canada and abroad, including a June U.S. Supreme Court (news - web sites) decision striking a Texas ban on gay sex.

Legal experts, however, said that the long-awaited decision, while clearly stating that it is unconstitutional to bar gay couples from marriage, gave ambiguous instructions to the state Legislature.

Lawmakers remained uncertain if civil unions went far enough to live up to the court's ruling — or if actual marriages were required.

When a similar decision was issued in Vermont in 1999, the court told the Legislature that it could allow gay couples to marry or create a parallel institution that conveys all the state rights and benefits of marriage. The Legislature chose the second route, leading to the approval of civil unions in that state.

The Massachusetts decision made no mention of an alternative solution, but instead pointed to a recent decision in Ontario, Canada, that changed the common law definition of marriage to include same-sex couples and led to the issuance of marriage licenses there.

The state "has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples," the court wrote. "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."

The Massachusetts case began in 2001, when the seven gay couples went to their city and town halls to obtain marriage licenses. All were denied, leading them to sue the state Department of Public Health (news - web sites), which administers the state's marriage laws.

A Suffolk Superior Court judge threw out the case in 2002, ruling that nothing in state law gives gay couples the right to marry. The couples immediately appealed to the Supreme Judicial Court, which heard arguments in March.

The plaintiffs argued that barring them from marrying a partner of the same sex denied them access to an intrinsic human experience and violated basic constitutional rights.

Over the past decade, Massachusetts' high court has expanded the legal parameters of family, ruling that same-sex couples can adopt children and devising child visitation right for a former partner of a lesbian.

Massachusetts has one of the highest concentrations of gay households in the country with at 1.3 percent of the total number of coupled households, according to the 2000 census. In California, 1.4 percent of the coupled households are occupied by same-sex partners. Vermont and New York also registered at 1.3 percent, while in Washington, D.C., the rate is 5.1 percent

Iceberg · Post by **Iceberg** » 2004-02-04 02:37pm

The state "has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples,"

Quoted for truth.

Stravo · Post by **Stravo** » 2004-02-04 02:39pm

Nice to see conservatives who are all for small government and limiting the powers of government in people's lives are against this marriage amendment issu----oh wait.

Gil Hamilton · Post by **Gil Hamilton** » 2004-02-04 02:40pm

Good for Massachusetts, though I fear that the conservative reaction to this will allow that foolish Constitutional amendment to get more strength. This is the sort of thing that President Bush was talking about in his SoTU address, after all, with "activist judges" foisting their will on "the people". This is good in the short term, but I'm afraid of the possibility that it will actually come to hurt the gay marriage movement.

Nathan F · Post by **Nathan F** » 2004-02-04 02:52pm

Meh, Tennessee did this back in '96, iirc.

Gil Hamilton · Post by **Gil Hamilton** » 2004-02-04 03:24pm

Nathan F wrote:Meh, Tennessee did this back in '96, iirc.

Tennessee ruled that banning gays to marry was unconstitutional?

Certain, cause when I google that I'm getting stuff about the Tennessee House of Reps banning gay marriage in 1996 91 to 1?

Natorgator · Post by **Natorgator** » 2004-02-04 03:28pm

Gil Hamilton wrote:Good for Massachusetts, though I fear that the conservative reaction to this will allow that foolish Constitutional amendment to get more strength. This is the sort of thing that President Bush was talking about in his SoTU address, after all, with "activist judges" foisting their will on "the people". This is good in the short term, but I'm afraid of the possibility that it will actually come to hurt the gay marriage movement.

There's no way a constitutional amendment would ever pass. Most americans aren't comfortable with the idea of gay marriage, but most aren't in favor of banning it outright.

Iceberg · Post by **Iceberg** » 2004-02-04 03:33pm

Gil Hamilton wrote:Good for Massachusetts, though I fear that the conservative reaction to this will allow that foolish Constitutional amendment to get more strength. This is the sort of thing that President Bush was talking about in his SoTU address, after all, with "activist judges" foisting their will on "the people". This is good in the short term, but I'm afraid of the possibility that it will actually come to hurt the gay marriage movement.

Any MA residents around here who can tell us how MA selects its SC justices?

Gil Hamilton · Post by **Gil Hamilton** » 2004-02-04 03:41pm

Natorgator wrote:There's no way a constitutional amendment would ever pass. Most americans aren't comfortable with the idea of gay marriage, but most aren't in favor of banning it outright.

There is a Constitutional Amendment being cooked up by folks in Congress, which has the support of alot of heavy hitter congressmen and which President Bush alluded to in the State of the Union address.

Stravo · Post by **Stravo** » 2004-02-04 03:49pm

Gil Hamilton wrote:
Natorgator wrote:There's no way a constitutional amendment would ever pass. Most americans aren't comfortable with the idea of gay marriage, but most aren't in favor of banning it outright.
There is a Constitutional Amendment being cooked up by folks in Congress, which has the support of alot of heavy hitter congressmen and which President Bush alluded to in the State of the Union address.

In the end, you can have the Dahli Lama have a hand in the preparation of this amendment it still has to go to the voters and most opinion polls that I am aware of are against such an amendment. We're talking 2/3 majority of states here for it to pass after it passes Congress.

Metatwaddle · Post by **Metatwaddle** » 2004-02-04 04:49pm

Iceberg wrote:
Gil Hamilton wrote:Good for Massachusetts, though I fear that the conservative reaction to this will allow that foolish Constitutional amendment to get more strength. This is the sort of thing that President Bush was talking about in his SoTU address, after all, with "activist judges" foisting their will on "the people". This is good in the short term, but I'm afraid of the possibility that it will actually come to hurt the gay marriage movement.
Any MA residents around here who can tell us how MA selects its SC justices?

Not from MA, but I looked on the MA website to try and find out. Unfortunately I haven't been able to find anything, but maybe I'm just looking in the wrong places. You'll probably want to start here.

Iceberg · Post by **Iceberg** » 2004-02-04 04:57pm

In Minnesota, judges are elected, but they aren't allowed to campaign.

I always vote for the non-incumbent in any judicial election.

Glocksman · Post by **Glocksman** » 2004-02-04 05:00pm

Unless the USSC jumps in, I think we're going to wind up with a mishmash of state recognition rules on gay marriages.
Some states will recognize marriages performed in other states while others won't.

What about the 'full faith and credit' clause in the Constitution, you might ask?

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State

This would seem to force other states to recognize a gay marriage in Massachussets, right?

Maybe not.

The second half of the clause reads:

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

I'm no lawyer, but this would seem to leave it up to Congress to decide if other states have to recognize a gay marriage performed in another state.
And Congress has already spoken on the issue with the 'Defense of Marriage Act'.

Nathan F · Post by **Nathan F** » 2004-02-04 05:06pm

Gil Hamilton wrote:
Nathan F wrote:Meh, Tennessee did this back in '96, iirc.
Tennessee ruled that banning gays to marry was unconstitutional? Certain, cause when I google that I'm getting stuff about the Tennessee House of Reps banning gay marriage in 1996 91 to 1?

That is what was declared unconstitutional by the state supreme court.

Alyeska · Post by **Alyeska** » 2004-02-04 06:31pm

If some states recognize Gay mariages the other states HAVE to recognize them as well. What one state recognizes other states must honor. That is Federal law. Passing laws for the sole purpose of not recognizing the rights granted by other states is unconstitutional and if challenged will be tossed very quickly.

Frank Hipper · Post by **Frank Hipper** » 2004-02-04 06:33pm

Wouldn't be surprised if this sparks anti-gay violence somewhere.

Post by **Alyrium Denryle** » 2004-02-04 06:42pm

A victory for the reality of American Justice and liberty.

Darth Raptor · Post by **Darth Raptor** » 2004-02-04 06:52pm

The final showdown. The first move has been made, but the Tyrant promises retaliation. Two armies gather in the killing fields, those who serve darkness, and those who serve light. The captains marshall their men, and the ground thunders with the agitated hoofbeats of a million horses. The conscript and the volunteer, the swordsman and the archer all swollow their fear and prepare to vanquish those who would enslave them. Though the enemy's war cry is thunderous, the cause is righteous. The battle is nigh. but for the first time: Victory is in sight. Behold, the trumpets sound...

Glocksman · Post by **Glocksman** » 2004-02-04 07:11pm

Alyeska wrote:If some states recognize Gay mariages the other states HAVE to recognize them as well. What one state recognizes other states must honor. That is Federal law. Passing laws for the sole purpose of not recognizing the rights granted by other states is unconstitutional and if challenged will be tossed very quickly.

Read that 'full faith and credit' clause again.

This part:

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

indicates to me that Congress can grant the power to other states to refuse to recognize a MA gay marriage.
Like I said earlier, Congress has already spoken once on the issue with the DoMA.

Despite the 'full faith and credit' clause, most states don't recognize my Indiana License to Carry Handgun, so it obviously either doesn't apply because Congress has made an exception in the case of gun permits or it's just being ignored. Either way, there's a precedent right there for exceptions to the clause.

If you want to force other states to recognize gay marriage, you're either going to have to get the SC to rule the DoMA unconstitutional, despite the granting of the power to make such a law in the constitution, or you're going to have to do it state by state.