Same Sex “Marriages” Legalized in Massachusetts

“The court does not fashion a remedy that affords greater protection of a right Instead, using the rubric of due process it has redefined marriage."
( [email protected] ) Nov 19, 2003 10:54 AM EST

BOSTON – On Nov. 18, The Supreme Judicial Court in Massachusetts gave same sex couples within the state the right to “marry,” echoing and amplifying the historic Vermont decision that shook the country four years ago.

"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 historic decision gave the legislator 180 days to act in a way “it may deem appropriate,” stopping short of immediate acceptance of same sex marriages. According to legal experts, because the ruling was based on an interpretation of Massachusetts Constitution, it cannot be appealed to the U.S. Supreme Court.

Marshall argued in her verdict, that the ban on same-sex “marriage” mirrors the now-illegal ban on interracial marriage. To the dismay of conservative Christians across the state, Marshall claimed 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."

"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."

Justice John Greaney agreed with Marshall, saying that the current marriage laws create a “caste-like system” between heterosexual and homosexual couples.

The Massachusetts decision differs from the 1999 Vermont verdict that gave the legislature the option of legalizing either same sex marriage or marriage like civil unions in one critical way: it leaves the legislature no such option. The recent decision sidesteps with the June 2003 ruling in Canada by the Ontario Court of Appeals that legalized same-sex "marriage.”

Since the inception of Ontario’s controversial verdict, Christians across the U.S. flooded the media with dissenting voices, ominously cautioning the nation of a similar ruling within its courts. Several denominational heads released a statement that explicitly protects the traditional definition of marriage as a union between man and woman.

Despite such efforts, the Massachusetts court passed the verdict with a 4-3 majority.

The court seemed to recognize the significance of its decision, saying, “We are mindful that our decision makes a change in the history of our marriage law.”

While 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 making their verdict, the minority asserted both cases had nothing to do with same sex couples marrying.

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 rebutted, "The Supreme Court did not imply the existence of a right to marry a person of the same sex.”

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 dissenting justices declared that the court opinion “exceeds the bounds of judicial restraint, and asserted 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.

"[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."