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Nov. 19, 2003

Gays have right to marry, Mass. SJC says

After historic ruling, Legislature given 180 days to change law

The ban against gay marriage, like the earlier ban on interrace marriage, is rooted in prejudice, Chief Justice Margaret H. Marshall wrote for the court.

John Blanding/Globe Staff/File 2002

The ban against gay marriage, like the earlier ban on interrace marriage, is rooted in prejudice, Chief Justice Margaret H. Marshall wrote for the court.

In a historic and long-awaited decision, a deeply split Supreme Judicial Court yesterday ushered in a new era of gay rights, becoming the nation’s first state supreme court to rule that same-sex couples have the legal right to marry.

In the 4-3 decision, the court’s majority ruled that the centuries-old notion of marriage as limited to a man and a woman should be updated to define the institution as the exclusive, “voluntary union of two persons as spouses.”

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The majority based the decision on the equal protection and due process provisions of the Massachusetts constitution, saying they guarantee the right for same-sex couples to marry. The ban against gay marriage, like the earlier ban on interrace marriage, is rooted in prejudice, Chief Justice Margaret H. Marshall wrote for the court.

“The Massachusetts Constitution affirms the dignity and equality of all individuals,” Marshall wrote. “It forbids the creation of second-class citizens.”

The court gave the Legislature 180 days to change state law to comply with the decision. But even if the Legislature does nothing, same sex couples would still have the right to marry sometime after early May of next year.

The decision, released eight months after the SJC heard arguments in the case - and four months after the court missed its own deadline for ruling - brought a flurry of reaction, from jubilant supporters of gay marriage to fearful opponents. President Bush decried the ruling during his state visit to London, saying he would work with Congress to protect traditional marriage.

“Marriage is a sacred institution between a man and a woman,” Bush said in a statement, adding that the SJC decision “violates this important principle.”

Governor Mitt Romney said he also disagreed deeply with the SJC decision, but will work with the Legislature to draft a law “consistent” with the ruling. He will simultaneously fight, he said, for a constitutional amendment - which could appear on the ballot no sooner than November 2006 - limiting marriage to the relationship between a man and a woman.

“It has been so since the beginning of time,” he said. “I stand with the great majority of people in our country who believe it should continue to be so, and I will work for that to be the case.”

Legal specialists say that the US Supreme Court will probably decide whether other states must recognize same-sex marriages granted in Massachusetts. States traditionally recognize out-of-state marriages, but specialists expect that many states, especially the 37 that have passed legislation limiting marriage to a man and a woman, will balk at recognizing same-sex marriages.

The SJC ruling would not extend federal benefits to same-sex couple, which is banned under the 1996 Defense of Marriage Act.

But at a press conference yesterday, flanked by the seven same-sex couples who filed the lawsuit prompting the SJC’s decision, attorney Mary Bonauto proclaimed the day historic.

“A court finally had the courage to say that this really is an issue about human equality and human dignity, and it’s time that the government treat these people fairly,” said Bonauto, the lawyer for Gay & Lesbian Advocates & Defenders who argued the case.

Singing “we’re going to the State House and we’re going to get married,” about 400 people hugged and wiped away tears at a rally last night at the Old South Meeting House. They decorated the room in rainbow flags, linking the birthplace of the Boston Tea Party to the struggle for gay rights.

Attorney General Thomas Reilly, whose office represented the state Department of Public Health, which was sued for denying marriage licenses to the seven gay and lesbian couples, stood by his office’s arguments against same-sex marriage.

“I have always believed in treating people fairly,” said Reilly. “But I also believe that such a profound change in social policy should have been decided by the Legislature, not the courts.”

The Massachusetts Family Institute called the decision “a deep disappointment.”

“The residents of Massachusetts and of the entire country should take this as a wakeup call and impress upon their legislators the importance of defining marriage in the state Constitution as the union of a man and woman,” said MFI president Ron Crews.

While most city and town clerks were still trying to digest the decision yesterday, City Councillor Denise Simmons said she will ask the Cambridge City Council Monday to vote to immediately authorize the city clerk to marry gay couples.

As soon as she heard the decision yesterday morning, Linda Davies, a plaintiff, proposed to her partner of 32 years, Gloria Bailey. They were in their car, driving from their Orleans home to the Boston press conference.

“Without a doubt, this is the happiest day of our lives,” said Bailey.

Marshall was joined in the majority opinion by Justices John M. Greaney, Roderick L. Ireland, and Judith A. Cowin. Justices Francis X. Spina, Martha B. Sosman, and Robert J. Cordy each wrote a dissenting opinion.

The ruling applies only to civil marriage, an institution created and regulated by the state. The ruling does not require churches or other religious organizations to perform same-sex weddings.

The justices did not address same-sex civil unions, adopted three years ago by Vermont as an alternative to marriage. Some legal specialists argued that by not explicitly rejecting civil unions, the SJC kept its decision ambiguous enough to allow the Legislature to adopt such a compromise.

“The court never says you have to call it marriage,” said attorney Paul Martinek, editor of Lawyers Weekly USA.

But family and constitutional law specialists disagreed, saying that granting only civil unions would violate the SJC’s sweeping endorsement of equal rights for gay couples.

“My opinion is that the decision talks about gay marriage and only about gay marriage,” said Elizabeth Bartholet, a family law professor at Harvard Law School.

The three justices who dissented argued that the Legislature, not the court, should launch such a broad social change. “Although it may be desirable for many reasons to extend to same-sex couples the benefits and burdens of civil marriage . . . that decision must be made by the Legislature, not the court,” Cordy wrote.

Cordy wrote that the decision about whether same-sex couples can marry should not be based on whether they can live together or raise children together. “It is about whether the State must endorse and support their choices by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them,” he wrote.

Spina wrote in his dissent that the court’s majority decision, rather than thwarting government intrusion, injects the government into “the most intimate activity behind bedroom doors.”

But Greaney, in an opinion concurring with the majority, took the unusual step of describing how he hoped citizens would respond to the court’s decision. Even opponents of same-sex marriage, he said, should do more than offer “grudging acknowledgment of the court’s authority.” Same-sex couples, he wrote, are “our neighbors, our coworkers, our friends” who volunteer in schools and “worship beside us in our religious houses.”

“We share a common humanity and participate together in the social contract that is the foundation of our Commonwealth,” Greaney wrote. “Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do.”

Some lawyers were struck by the justice’s rare appeal to the public. “It’s unusual and it’s to be welcomed for a court to get down off its high horse a little bit and essentially engage in what hopefully is a dialogue with the ultimate court, which is the court of public opinion and the court of history,” said Laurence H. Tribe, a professor of constitutional law at Harvard Law School.

The case began in 2001 after seven same-sex couples went to their local city or town offices and applied for marriage licenses. When their requests were rejected, they sued the state in Suffolk Superior Court.

In May 2002, Suffolk Superior Court Judge Thomas E. Connolly threw out the case.

“This is such an incredible event,” said Peter Zupcofska, a lawyer who co-wrote the amicus brief for the Boston Bar Association supporting gay marriage. “I think for the gay community, it is somewhat akin to the Berlin Wall coming down.”

Globe staff reporter Ralph Ranalli and Globe correspondents Sasha Talcott and Brendan McCarthy contributed to this story.
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