Mass. Court Says Gay Marriage Can't Be Denied

Published November 18, 2003

| FoxNews.com

The highest court in Massachusetts ruled Tuesday that the state cannot deny gay couples there the right to marry.

The Supreme Judicial Court (search) ruled that same-sex couples are legally entitled to wed under the state Constitution, but stopped short of immediately allowing marriage licenses to be issued to the couples who challenged the law.

Massachusetts may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry," the court ruled, according to a posting on its Web site.

The court is giving the Legislature 180 days to "take such action as it may deem appropriate in light of this decision," which means the decision will not take affect until then.

• Raw Data: Ruling — Goodridge v. Dept. of Public Health (pdf)

"Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support. It brings stability to our society," Chief Justice Margaret Marshall (search) wrote in the ruling.

"For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. In return, it imposes weighty legal, financial, and social obligations."

Republican Gov. Mitt Romney criticizing the ruling, saying: "Marriage is an institution between a man and a woman. I will support an amendment to the Massachusetts Constitution that makes that expressly clear. Of course, we must provide basic civil rights and appropriate benefits to nontraditional couples, but marriage is a special institution that should be reserved for a man and a woman."

The ruling was 4-to-3 in a case that has become the focus of international attention. Advocates on both sides are predicting the court could make Massachusetts the first state in the nation to legalize gay marriage.

"They said, basically, to the Legislature, 'we really think this is your job,'" Wendy Murphy, a former sex crimes prosecutor and victims advocate, told Fox News, adding that the court took an activist role in its decision but backed up enough to give the Legislature the authority to make same-sex marriages legal.

A 'Good Day' for Gay Community

The lawsuit was filed by seven gay couples — including Gary Chalmers and Rich Linnell from Northbridge, Mass., and Gina Smith and Heidi Norton from Northampton, Mass. — who sued the state Department of Public Health in 2001 after their marriage licenses were denied. They argued that forbidding homosexuals to marry is discrimination along the same lines as forbidding interracial couples to marry.

But a Superior Court judge dismissed their suit in May 2002, ruling that state law does not convey the right of marriage to gay couples, and the couples appealed.

Attorney Mary Bonauto, who represented the plaintiffs, said the only task assigned to the Legislature is to come up with changes in the law that will allow gay couples to marry.

"This is a very good day for gay and lesbian families in Massachusetts and throughout the country," Bonauto said.

Because of Article 4 in the U.S. Constitution, known as the Full Faith and Credit clause (search), other states would have to honor marriages performed in Massachusetts under a reciprocity agreement.

In other words, if a gay couple got married while on vacation in Massachusetts, their home state would also have to consider them married - unless those states had a so-called defense of marriage act, which explicitly defines marriage as only being between a man and a woman. Thirty-seven states have such laws.

The high court heard arguments in March, and hundreds of organizations and individuals across the country filed briefs on both sides of the argument.

The court had three options: instructing the state to give marriage licenses to the seven couples; upholding the state's authority to deny same-sex couples the right to wed; referring the matter to the Legislature. The Legislature is already considering various competing proposals to outlaw or to legalize gay marriages or civil unions.

Many legal experts had thought the court would pass the political hot potato to the Legislature for a final decision.

"They did, in a very activist style, sort of trump the power of the Legislature," Murphy said. "This is a very important decision."

For the Supreme Court?

The big question that looms now is whether the U.S. Supreme Court will take up the issue and/or step in on the Massachusetts case.

"The United States Supreme Court, at this point, doesn't really have a voice, it doesn't really have a decision" in the Massachusetts case, Murphy said. "There really are no federal issues."

Courts in Hawaii, Alaska and Vermont have previously ruled that banning gay marriage was unconstitutional, but no American court has ordered the issuance of a marriage license to gay partners, effectively legalizing gay marriage.

The ruling closely matches the 1999 Vermont Supreme Court decision, which led to its Legislature's approval in 2000 of civil unions that give couples many of the same benefits of marriage.

Under the Supreme Judicial Court's internal guidelines, a decision would have been due in early July. But the court waived that rule, leading to a monthslong wait for a verdict.

The Massachusetts Legislature had been considering a constitutional amendment that would legally define marriage as a union between one man and one woman.

On the campaign trail last fall, Romney said he would veto gay-marriage legislation.

State Speaker of the House Tom Finneran (search) of Boston had endorsed a defense of marriage act, and the Legislature last year defeated a gay marriage initiative.

"If there is huge public outcry about this and the public says, 'Look, let's amend the Constitution so this decision never takes effect,' then the Legislature can do this. I don't think they will," Murphy said.

A poll released Tuesday by the Pew Research Center for the People & the Press (search) found that opposition to gay marriage has grown since midsummer, with 32 percent favoring it and 59 percent opposing it. In July, 53 percent said they opposed gay marriage.

The gay community has been victorious recently, with the Supreme Court deciding to strike down anti-sodomy laws, the ordination of an openly gay bishop in the Episcopal Church and a Canadian appeals court ruling that it was unconstitutional to deny gay couples the same marriage rights as heterosexual couples.

The U.S. House is currently considering a constitutional ban on gay marriage. President Bush, although he believes marriage should be defined as a union between one man and one woman, recently said that a constitutional amendment is not yet necessary.

"I am disappointed in the ruling by Massachusetts' highest court, as that decision may have implications for families well beyond the border of the commonwealth," Sen. John Cornyn, R-Texas, chairman of the Senate Judiciary Committee's subcommittee on the Constitution, said in a statement.

"On an issue as fundamental as marriage, it is the job of the American people, through their legislators, to decide — not the Massachusetts courts."

Fox News' Alisyn Camerota and The Associated Press contributed to this report.

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