Why the Fuss?
(About Same Sex Marriage)
(written Nov. 2003)
HJ 56: Marriage Amendment
(written July 2003)
The So-Called Defense of Marriage Amendment
(written July 2001)
This is a summary of the landmark ruling of the Massachusetts Supreme Court in the case of Goodridge, et al. v. Department of Public Health, et al., handed down on Nov. 18, 2003, which found the ban against same-sex marriage in the Commonwealth of Massachusetts violated the Constitution of the Commonwealth. I've summarized it in my own words, to the best of my ability, although I'm not a lawyer and may have misinterpretted some of the legal language. I highly recommend that you read the entire thing, because it's not only important to us as GLBT people, but beautifully written. However, if you don't have time for all of that, here's my summary of the Majority Decision, written by Chief Justice Marshall.
The case was brought by seven same-sex couples from 5 different counties in MA. As of April 11, 2001, when they filed, the couple with the longest history had been together for 30 years. The one with the shortest had been together for 4. Four of the couples were living with their minor children (ranging in age from 12 to 1 years, all born while the adults were together.) Two had cared for aged parents.
The majority opinion, written by Chief Justice Marshall, begins by stating the importance of marriage as a vital social institution. She goes on to say the case is concerned only with whether denying civil marriage to same-sex couples is consistent with the MA Constitution. The court has decided that it's not.
First, she says, yes this is a change, and there are people on both sides with deeply held beliefs; but that's not the point. It's about the Constitution, not about what people believe.
She talks about the plaintiffs, about marriage law, about the common definition of marriage, and says that the plaintiff's contention that the current law can be construed to include same-sex couples is invalid. It obviously doesn't.
In Section III A, she discusses whether barring same-sex couples from civil marriage is a violation of the MA Constitution. She says that civil marriage is wholly secular, and involves three partners; two willing spouses and an approving State. She reiterates that marriage is good for society, and points out that it conveys many private and social advantages to people who choose to enter into it, and their children. This, she says, is why it's been considered a "civil right" for many years. Although people who could marry each other, but choose not to, can be denied these benefits, that logic doesn't hold for people who would marry each other, if only they could.
Section III B starts with a discussion of the laws that prevented caucasians from marrying people of other races (miscegenation laws) and how they were found to violate the 14th Amendment of the US Constitution. She points out that the MA Constitution protects individual rights more vigorously than the Federal one, which is the way it was designed to work. (The Federal government encourages the states to give individuals even more rights.)
She mentions that the plaintiffs have asked for "strict judicial scrutiny," while the Department has asked that the case be judged under "rational basis." Since the law fails "rational basis," the court is using that.
Then she answers each of the Department's three rationales for the ban.
To the first one, which states that the primary purpose of marriage is to provide a favorable setting for procreation, the court says that's incorrect. Procreation is not required for obtaining a license, nor is coital consummation required to become, or stay, married. The "sine qua non of civil marriage" is, and always has been, "the permanent and exclusive commitment" involved. To try to say its purpose is coital procreation is to single out the one "unbridgeable" difference between same-sex and opposite-sex couples, and make that the basis. That's identifying people by a single trait, and denying them protection across the board, and it's impermissible. It also gives the State stamp of approval to the notion that same-sex couples are inherently unstable and inferior, which is illegal in MA.
To the second one, which states that the ban ensures optimal child rearing (which the Department defined as two parents, one of each sex,) the court points out that's just a different shade of the first reason. In addition, the department didn't provide any evidence that if same-sex couples were not permitted to wed, the people involved would marry someone of the opposite sex so they could raise children. Furthermore, the department concedes that same-sex couples can be excellent parents; however their task is made more difficult because they cannot marry. This means that everything from establishing parentage to child custody in case of dissolution is harder than it is for same-sex parents. This is more than the "inconvenience" the department says it is. It penalizes the children based on the sexual orientation of their parents, which is not permitted under MA law.
To the department's third argument, that the ban saves scarce resources, the court says that the department's contention that same-sex couples aren't as financially dependent on each other as opposite sex couples ignores the fact that many same-sex couples, including several of the plaintiffs, have dependents (children or aged parents.) The department isn't saying that those dependents are less deserving that those of opposite-sex couples, nor are they saying that the benefits which accrue to married couples depend on their financial interdependence. So the ban "bears no rational relationship to the goal of economy."
Next, the court answers the amici. The first one says that broadening the definition of civil marriage will trivialize or destroy it. To that, the court says it's certainly a significant change. But the plaintiffs want to be married, not to undermine or abolish the institution. Allowing them to do so will have no effect on opposite-sex marriages, any more than allowing people to marry members of other races affected same-race marriages. If anything, extending civil marriage to same-sex couples reinforces its importance.
To the argument that only the Legislature can control and define marriage, and for the court to do so is an usurpation of power, the court says, that misses the point and completely misunderstands Judicial Review. The function of the court is to decide whether laws meet constitutional criteria. That's its job.
The whole history of constitutional law is the extension of rights and protections to people and classes that were historically ignored or excluded. Civil marriage is evolving. Wives, who once had approximately the same legal standing as slaves, have been given more rights because the courts and the legislature have acted. Every time rights are expanded, people raise the alarm, but somehow marriage has survived, and the court has no doubt it will again.
The next amici contends that a finding for the plaintiffs will cause interstate conflict. The court says it won't presume to tell other states how to interpret their constitutions, nor will it allow their possible reactions to interfere with its interpretation of the MA Constitution.
Several amici contend that the ban reflects community consensus that homosexual conduct is immoral. The court answers that MA has a strong affirmative action policy prohibiting discrimination on the basis of sexual orientation.
Finally, the court says, "The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason." She goes on to say that, since there's no reasonable relation between the ban and protection of society, it seems that the ban is rooted in persistent prejudice. Although the MA Constitution cannot control that prejudice, it cannot tolerate it either. Limiting marriage to opposite-sex couples "violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution."
At last, in Section IV, she talks about the plaintiff's request for relief. She says that as much of the current statue as can be preserved should be. No one is asking to strike down the law; "Eliminating civil marriage would be wholly inconsistent with the Legislature's deep commitment to fostering stable families and would dismantle a vital organizing principle of our society."
Instead, the court is going to follow Ontario's lead. Civil marriage is construed "to mean the voluntary union of two persons as spouses, to the exclusion of all others." All the plaintiffs requested was a declaration that the exclusion of qualified same-sex couples from civil marriage violates MA law. The court declares that it violates the MA Constitution. They vacate the summary judgment for the Department, and remand the case to the Superior Court for entry of a judgment consistent with this opinion. That entry of judgment is stayed for 180 days to permit the legislature to take such action as deemed appropriate in light of this opinion.