How Same-Sex Marriage Became Legal in Massachusetts:
The State's Supreme Court Rebukes Its Legislature's Attempt to "Circumvent" the Court's Decision

Just as the Ohio Governor stands poised to sign a bill banning same-sex marriage in his state, four of the seven Justices of the Massachusetts Supreme Court (formally known as the "Supreme Judicial Court") have cleared the last obstacle to same-sex marriage in theirs. Thus, Massachusetts will now take the lead among states as the only one to grant the right of civil marriage to same-sex couples.

Four other states have created alternative statuses--more or less like marriage, depending on the state. For example, as I discussed in a previous column, New Jersey recently enacted a domestic partnership law that provides formal recognition of same-sex relationships, but falls far short of marriage. At the same time, thirty-seven other states have passed laws banning same-sex marriage.

Currently, however, Massachusetts is the only state that will actually permit gays and lesbians to marry. (Vermont permits same-couples to enter into "civil unions," a status virtually identical to marriage, and, beginning January 1, 2005, California will enlarge its existing domestic partnership status to be marriage-like in almost every respect. But neither state's alternative carries the name "marriage," and as I discuss below, that may make a difference.)

Before Massachusetts came to this point, however, a sharp dialogue between its Supreme Court and its legislature had to occur.

In November 2003, in Goodridge v. Department of Public Health, the Massachusetts Supreme Court held that a ban on same-sex marriages violates the state constitution's guarantees of equality and due process. Denial of the right to marry, the Court explained, "works a deep and scarring hardship on a very real segment of the community for no rational reason."

Moreover, the harm to gays and lesbians, the Court said, is not only the harm that comes from the denial of the benefits of marriage. It is also the harm of being deemed "second-class citizens" in the process.

The Court gave the legislature 180 days to "take such action as it may deem appropriate in light of this opinion." The obvious implication of this language, given the holding and reasoning of the Goodridge opinion, was that the Legislature was to amend its statutes to permit same-sex couples to marry. But after the decision came down, the Massachusetts Senate did something different, and lesser, hoping it would pass muster with the Court.

Specifically, the legislature rushed to pass a bill allowing same-sex couples access to a marriage-like status, but denying them the right to marriage itself. Instead, according to the bill, same-sex couples could enter into civil unions with all the "benefits, protections, rights and responsibilities" of marriage.

The Senate then asked the state Supreme Court for an advisory opinion about the constitutionality of its law. (An "advisory opinion" -- forbidden in federal courts and most state courts -- counsels the legislature on the validity or constitutionality of a law outside the context of a particular court case or controversy.)

The Justices agreed to provide an Answer, given the importance of the question at stake and the "serious doubt" of the legislature about their authority to enact the civil union law. The Answer, joined by four Justices of the Court, responded with a resounding "No."

It is no wonder that the legislature had "serious doubt" about its bill -- and no wonder the Court answered "No" to the legislature's question. The Goodridge decision had been quite clear that only a right to enter civil marriage would cure the constitutional infirmity in the state's laws. The reasoning of the case, which I discussed in an earlier column, could be read no other way. Thus, the Senate's attempt to read the opinion otherwise was, as the Justices observed in their Answer, a purposeful attempt to circumvent the opinion.

The Justices' Answer reminded the Senate that the Court, in Goodridge, had not only been concerned with the tangible benefits of marriage -- such as inheritance rights, tax deductions, evidentiary protections, and access to health insurance. It had also been moved, in its constitutional analysis in the first instance, by the fact that "intangible benefits flow from marriage." And it had stressed that, "[w]ithout the right to choose to marry, same-sex couples are not only denied full protection of the laws, but are excluded from the full range of human experience."

Thus, the original Goodridge opinion had plainly held that gays and lesbians have the right to equality in marriage itself -- not to the "separate but equal" alternative of a marriage-like status with the benefits of marriage, but a different name.

Upon hearing the news of the Massachusetts Supreme Court decision, many observers wondered why it is that, in Vermont, civil unions are constitutionally acceptable, but in Massachusetts, they are not. To answer that question, it's necessary to look to the Vermont Constitution, and the way it has been interpreted by Vermont courts.

As in Massachusetts, change in Vermont came via its Supreme Court -- which held four years ago, in Baker v. State, that gays and lesbians could not be denied the benefits of marriage. But unlike in Massachusetts, the State ended up with an apparently constitutional Act Relating to Civil Unions, and not with same-sex marriage.

In Baker v. State, the Vermont Supreme Court held that it was a violation of the Common Benefits Clause of Vermont's Constitution to deny same-sex couples the right to marry or the right enter into a substantially comparable, and legally recognized, relationship. The Court thus expressly sanctioned a marriage-like alternative because of the nature of the constitutional right at stake.

There is no exact parallel in the federal constitution to Vermont's Common Benefits Clause. Courts prior to Baker had read it to provide protections somewhat similar to those guaranteed by the federal Equal Protection Clause.

But in Baker, the Vermont Supreme Court distanced itself from those precedents. Rather than use the varying standards of review familiar from federal Equal Protection cases, it applied a different standard that sought to ensure that "any exclusion from the general benefit and protection of the law would bear a just and reasonable relation to the legislative goals."

The Court found that the right being withheld was very significant, and that it was being withheld without appropriate justification. Accordingly, the Court found no basis for "the continued exclusion of same-sex couples from the benefits incident to a civil marriage license under Vermont law."

It then gave the Legislature a "reasonable" period of time to "craft an appropriate means of addressing this constitutional mandate." And it stated that failure to do so would mean the plaintiffs could petition the Court for their originally requested remedy: the right to marry.

The Legislature responded as directed--and created a parallel status that would enable same-sex couples to gain formal recognition of their relationships, as well as entitlement to all the benefits, rights, and burdens of marriage, which numbered at least a thousand. However, it did not allow same-sex couples the right to marry.

In contrast to Vermont's, the Massachusetts Constitution has no common benefits clause. Thus, the Massachusetts litigation went forward under its Constitution's equality and due process clauses -- which have been read to be generally similar to their federal parallels, only more protective of individual rights.

There was no basis in the text of the Massachusetts' clauses for focusing on the benefits of marriage, as opposed to marriage itself. In Vermont, the Constitution stressed the "benefit and protection" of the law, but this was not the case in Massachusetts.

Thus, when the Goodridge Court concluded that the government lacked a justifiable rationale for treating same-sex couples differently from heterosexual ones, the obvious remedy was ordered: Treat them the same. This is the usual remedy for a violation of principles of formal equality.

The Massachusetts Supreme Court's Goodridge opinion was quite clear that it was denouncing the exclusion of gays and lesbians from the institution of marriage itself, not just the denial of the benefits of marriage. The Senate's "separate but equal" response was thus constitutionally insufficient, and rightfully rejected. Still, the ease with which it crafted and agreed upon a civil union law is a testament to the powers of social change: In just four years, a "civil union" has become a familiar, accepted relationship form.

One Justice's separate answer to the Senate's query characterizes the dispute between the Court and the Senate as a "squabble over the name to be used." If the rights are truly identical, Justice Sosman argues, the Legislature should be permitted to call each status whatever it wants. (The majority's answer of course disagreed, explaining that the "dissimilitude between the terms 'civil marriage' and 'civil union' are not innocuous," but rather assign "same-sex, largely homosexual, couples to second-class status.")

But that characterization misses the important question: Why is it so important to the Senate that a formally recognized, legally binding relationship between members of the same sex not be called marriage? One might trot out the old "it degrades the institution of marriage" argument, but that has never been very persuasive. After all, as Ellen Goodman pointed out in one of her recent columns, doesn't Britney Spears's 55-hour Las Vegas marriage to someone she apparently doesn't love disparage marriage more than this?

The fight is probably not over in Massachusetts. The next step for opponents of same-sex marriage is an amendment to the Massachusetts Constitution banning it. But the procedure required for such an amendment means it could take effect, if ratified, no earlier than November 2006.

In the meantime, there are bound to be hundreds, even thousands of same-sex couples at the altar in Massachusetts. And the motivation to amend the Constitution may look different, even to opponents of same-sex marriage, when the issue is stripping citizens of a right they already have, as opposed to granting them a new one.