Big Win for Gay Rights in Massachusetts

This is a partial transcript of The Big Story With John Gibson, November 18, 2003, that has been edited for clarity.

JOHN GIBSON, HOST: Massachusetts could become the first state to issue marriage licenses to gay couples as the state's highest court rules same-sex couples must be allowed to legally wed.

The Massachusetts Legislature (search) could change the state's constitution to ban gay marriage. Here to explain the ruling and what might happen next is FOX News senior judicial analyst Judge Andrew Napolitano (search). So did this court say, “Okay, it's legal?”

JUDGE ANDREW NAPOLITANO, FNC SENIOR JUDICIAL ANALYST: Well, it wasn't quite that simple. The court said that the legislature must decide if it's going to allow civil unions or gay marriages. But the legislature cannot ban some type of state-recognized union between same-sex couples because the constitution would prohibit — the constitution of the state of Massachusetts would prohibit such a ban. So, the legislature does not have a full panoply of choices before it.

GIBSON: But did it say that the state legislature must — must allow same-sex couples to be married or did it say something else, one of these Vermont union things is possible?

NAPOLITANO: Well, that's a very good question, because it cobbles together phrases with which we're familiar. We're familiar with the phrase “civil union” because that's what they call it in Vermont.

We're all, of course, familiar with the word "marriage." The Supreme Court of Massachusetts today called it “civil marriage,” as if to sort of combine those two things together. But it basically told the legislature, whatever you do — and you only have six months in which to do it — you must provide for the recognition of a stable, committed union between persons of the same sex, whatever you want to call it.

GIBSON: Okay, now is the basis of this that same-sex couples don't have the same legal rights as married couples? Or was the basis of it sort of an abstract, “Hey, look, if you are in love, you ought to be able to get married?”

NAPOLITANO: The basis of it was the constitution of the state of Massachusetts does not let the legislature distinguish between heterosexual couples and same-sex couples. And if you are going to grant the benefits of marriage — the state-recognized benefits of marriage to same-sex people, you must grant it — excuse me, to heterosexuals, you must grand it to people of the same sex.

Now, there is a proposal in the legislature to define marriage as a union between a man and a woman. That could only now have effect if done by a constitutional amendment. Meaning first the legislature must pass it and then the people of Massachusetts must pass it in November 2004 of the next general election.

That is the only way to overrule the Supreme Court decision. Otherwise, in six months, there will be some type of same-sex union that the state of Massachusetts will be compelled to recognize.

GIBSON: Judge Andrew Napolitano, thank you Judge.

NAPOLITANO: You're welcome, John.

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