Mass. Supreme Court approves same-sex ‘marriage’

BOSTON (BP)–In an historic ruling certain to have vast social and political ramifications, Massachusetts’ highest court ruled Nov. 18 that same-sex couples within the state have the right to "marry."

The Supreme Judicial Court stopped short of immediately legalizing same-sex "marriage" and stayed its ruling to give the legislature 180 days to act in a way "it may deem appropriate."

Because the ruling was based on an interpretation of the Massachusetts Constitution, it cannot be appealed to the U.S. Supreme Court, legal experts say.

"Certainly our decision today marks a significant change in the definition of marriage as it has been inherited from the common law, and understood by many societies for centuries," a strongly worded majority opinion, written by Chief Justice Margaret Marshall, read. "But it does not disturb the fundamental value of marriage in our society. Here, the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished."

The scope of the 4-3 decision goes much further than a 1999 decision by the Vermont Supreme Court that gave the legislature the option of legalizing either same-sex "marriage" or marriage-like civil unions. The Massachusetts decision appears to leave the legislature no such option.

The legislature could begin the process of passing a constitutional amendment banning same-sex "marriage," although it would not appear on the ballot until 2006 at the earliest. In that event, the state likely would ask the court to extend its stay and let the voters decide.

With the exception of the stay, the opinion was a monumental victory for homosexual activists.

Marshall argued that the ban on same-sex "marriage" is tantamount to the now-illegal ban on interracial marriage. She sided with a ruling in Canada by the Ontario Court of Appeal that legalized same-sex "marriage." She even said that civil marriage is an "evolving paradigm."

"We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others," she wrote. "... We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution."

In a concurring opinion, Justice John Greaney said current marriage laws create a "caste-like system" between heterosexual and homosexual couples.

But the dissenting justices argued that the decision should have been left to the legislature.

"Today, the court has transformed its role as protector of individual rights into the role of creator of rights, and I respectfully dissent," Justice Francis Spina wrote for the minority.

The case began in 2001 when seven same-sex couples were denied marriage licenses. They sued the state, but a lower court rejected their arguments. The Supreme Judicial Court then agreed to take the case and heard oral arguments in March. A ruling was expected in July, but the court passed its internal deadline, leaving court-watchers guessing as to the reason behind the delay.

The court seemed to recognize the significance of its decision.

"We are mindful that our decision makes a change in the history of our marriage law," the majority wrote.

The majority pointed to two cases – the California Supreme Court’s 1948 Perez v. Sharp decision and the Supreme Court’s 1967 Loving v. Virginia decision – that overturned interracial marriage bans. In those cases, the majority wrote, "a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance – the institution of marriage – because of a single trait: skin color in Perez and Loving, sexual orientation here."

The minority, however, asserted that both cases had nothing to do with same-sex couples marrying.

"The Supreme Court did not imply the existence of a right to marry a person of the same sex," the minority decision read.

Homosexuals already have the right to marry, as long as they marry someone of the opposite sex, the minority argued.

"[The majority ruling] does not create any disadvantage identified with gender as both men and women are similarly limited to marrying a person of the opposite sex," the minority argued. "... All individuals, with certain exceptions not relevant here, are free to marry."

The majority rejected arguments made by the state that same-sex "marriage" bans are necessary because marriage is tied to procreation.

"Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family," Marshall wrote for the majority.

The legalization of same-sex marriage will not harm but will improve society, the majority opinion stated.

"Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race," it read. "If anything, extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities."

But Spina and the minority countered by saying the court’s opinion "exceeds the bounds of judicial restraint" and in turn redefines the very right it wishes to expand.

"[T]oday the court does not fashion a remedy that affords greater protection of a right," Spina wrote. "Instead, using the rubric of due process it has redefined marriage."