“The question before us is whether, consistent with the Massachusetts Constitution, the commonwealth may deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”
It certainly is a day for heteroxexuals and gays alike to be proud to live in Massachusetts, after the 4-3 Supreme Judicial Court ruling that it is a deprivation of equal protection under the law to deny gay couples the rights and obligations of the institution of marriage. It would have been even nicer if the Court had not imposed a six-month implementation process on the state, of course. That does make it much more likely that the issue will remain alive in the months leading up to the Presidential election, as this New York Times news analysis details. Certainly, if the domestic ‘culture wars’ become as inescapable a part of the national debate as the foreign policy issues, it will further polarize the electorate and spare us from an insipid campaign between ‘Bush and Bush-lite’, as some claim we endured in 2000. As pointed out in this Salon analysis, conservatives have their backs against the wall already with the Vermont same-sex union bill signed into law by then-governor Howard Dean; last year’s Supreme Court ruling in the Texas sodomy case decriminalizing consenting homosexual sex; the recent affirmation of same-sex marriages by an Ontario, Canada, court; and the appointment of an openly gay Episcopal bishop.
Republican strategists who think it will ignite conservative support for Bush and overcome a segment of the population’s misgivings about the invasion of Iraq may try to make gay marriage a hotbutton issue. We can hope that as a result they lose moderate voters who see Bush’s ties to the rabid Right unveiled, and the “compassionate conservative” lie exposed, in the process. On the other hand, pundits predict that if Christian Coalition types become unhappy with a certain reticence on Dubya’s part on the issue, “it will be very dangerous for him…” The delicious irony of one of Bush’s major handlers, VP Cheney, having an openly gay daughter, will be one to savor as the issue heats up.
The Right is certainly scurrying for the so-called ‘marriage amendment’ to the US Constitution, which would define a marital union as being between a man and a woman. Considering that 37 of the 50 states already have laws defining marriage as a union only between a man and a woman on their books, this might win, even based as it is on the inane claim that extending these rights to same-sex couples somehow “redefin(es) marriage to the point of extinction,” in the words of Family Research Council president Tony Perkins, or “(violates) the sanctity of marriage”, to use Bush’s more hackneyed and insipid phrasing. Expect an interesting legal battle about whether a federal constitutional amendment would trump the Massachusetts precedent, especially given Republican lip service to states’ rights and devolution of federal authority in other areas.
Given the closeness of the Supreme Court ruling, is there room for a compromise in which the legislature creates a same-sex union entity that is not called marriage but extends legal rights in areas including property, insurance, child custody and next-of-kin benefits to the partners? Opinion is divided among legal experts about whether the ruling, which has extensive explicit discussion of marriage, leaves room for anything less. It sounds unlikely to my reading.
The Massachusetts ruling cannot be challenged on the federal court level or overturned by the Massachusetts legislature, but since it is based on the Court’s interpretations of the rights afforded under the state constitution, there is a simple solution for its fundamentalist and homophobic opponents — change the constitution. (One of the three dissenting justices in the Massachusetts decision, parenthetically, said that gays are already as free to marry in this state as anyone else — as long as it is someone of the opposite sex! “Whether an individual chooses not to marry because of sexual orientation or any other reason should be of no concern to the court.”) There could be a move for a Massachusetts constitutional amendment , as well as the federal one, to ban gay marriage; our Mormon Republican governor Mitt Romney is on record as favoring such a maneuver. This would take at least three years, though. The nuances of Massachusetts politics make this an interesting battle to watch.
The legislature is majority Democratic, but also largely Catholic, and the Roman Catholic Church is strenuously opposed to gay marriage. On the other hand, the Democrats are rarely aligned with Governor Romney… —New York Times
Apparently, after courts affirmed same-sex marital rights in those states, the constitutions of Alaska and Hawaii were changed in similar fashion.
Another front on which the battle will undoubtedly be fought, if it withstands the backlash in Massachusetts, is whether same-sex marriages from this state would be considered valid by the federal government and other states. Will gay couples come to Massachusetts to marry and then return to other states to challenge the resulting discrimination against them in the courts, state by state? The likelihood is that the uphill battle will in some senses continue — if luck would have it, only in forty-nine of the fifty states. In the meantime, I am raising a toast to at least several couples I know here in Massachusetts who, in the aftermath of this ruling, will be renewing their marriage vows with the recognition and blessing of the state.