| Timber Loftis |
02-04-2004 04:25 PM |
Quote:
Analysis. As we stated above, in Goodridge the court was asked to consider the constitutional question "whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage." The court has answered the question. We have now been asked to render an advisory opinion on Senate No. 2175, which creates a new legal status, "civil union," that is purportedly equal to "marriage," yet separate from it. The constitutional difficulty of the proposed civil union bill is evident in its stated purpose to "preserv[e] the traditional, historic nature and meaning of the institution of civil marriage." Senate No. 2175, § 1. Preserving the institution of civil marriage is of course a legislative priority of the highest order, and one to which the Justices accord the General Court the greatest deference. We recognize the efforts of the Senate to draft a bill in conformity with the Goodridge opinion. Yet the bill, as we read it, does nothing to "preserve" the civil marriage law, only its constitutional infirmity. This is not a matter of social policy but of constitutional interpretation. As the court concluded in Goodridge, the traditional, historic nature and meaning of civil marriage in Massachusetts is as a wholly secular and dynamic legal institution, the governmental aim of which is to encourage stable adult relationships for the good of the individual and of the community, especially its children. The very nature and purpose of civil marriage, the court concluded, renders unconstitutional any attempt to ban all same-sex couples, as same-sex couples, from entering into civil marriage.
The same defects of rationality evident in the marriage ban considered in Goodridge are evident in, if not exaggerated by, Senate No. 2175. Segregating same-sex unions from opposite-sex unions cannot possibly be held rationally to advance or "preserve" what we stated in Goodridge were the Commonwealth's legitimate interests in procreation, child rearing, and the conservation of resources. See Goodridge, supra at 341. Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status. The holding in Goodridge, by which we are bound, is that group classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal.[3]
In Goodridge, the court acknowledged, as we do here, that "[m]any people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors." Id. at 312. The court stated then, and we reaffirm, that the State may not interfere with these convictions, or with the decision of any religion to refuse to perform religious marriages of same-sex couples. Id. at 337-338 n.29. These matters of belief and conviction are properly outside the reach of judicial review or government interference. But neither may the government, under the guise of protecting "traditional" values, even if they be the traditional values of the majority, enshrine in law an invidious discrimination that our Constitution, "as a charter of governance for every person properly within its reach," forbids. Id. at 312.
The bill's absolute prohibition of the use of the word "marriage" by "spouses" who are the same sex is more than semantic. The dissimilitude between the terms "civil marriage" and "civil union" is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. The denomination of this difference by the separate opinion of Justice Sosman (separate opinion) as merely a "squabble over the name to be used" so clearly misses the point that further discussion appears to be useless.[4] Post at . If, as the separate opinion posits, the proponents of the bill believe that no message is conveyed by eschewing the word "marriage" and replacing it with "civil union" for same-sex "spouses," we doubt that the attempt to circumvent the court's decision in Goodridge would be so purposeful. For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain. The bill would have the effect of maintaining and fostering a stigma of exclusion that the Constitution prohibits. It would deny to same-sex "spouses" only a status that is specially recognized in society and has significant social and other advantages. The Massachusetts Constitution, as was explained in the Goodridge opinion, does not permit such invidious discrimination, no matter how well intentioned.
The separate opinion maintains that, because same-sex civil marriage is not recognized under Federal law and the law of many States, there is a rational basis for the Commonwealth to distinguish same-sex from opposite-sex "spouses." Post at . There is nothing in the bill, including its careful and comprehensive findings (see Senate No. 2175, ¤Ê1), to suggest that the rationale for the bill's distinct nomenclature was chosen out of deference to other jurisdictions. This is but a post hoc, imaginative theory created in the separate opinion to justify different treatment for a discrete class. Even if the different term were used for the reason the separate opinion posits, and not in order to label the unions of same-sex couples as less worthy than those of opposite sex couples, we would remain unpersuaded. "Our concern," as the court stated in Goodridge, "is with the Massachusetts Constitution as a charter of governance for every person properly within its reach." Id. at 312.
We are well aware that current Federal law prohibits recognition by the Federal government of the validity of same-sex marriages legally entered into in any State, and that it permits other States to refuse to recognize the validity of such marriages. The argument in the separate opinion that, apart from the legal process, society will still accord a lesser status to those marriages is irrelevant. Courts define what is constitutionally permissible, and the Massachusetts Constitution does not permit this type of labeling. That there may remain personal residual prejudice against same-sex couples is a proposition all too familiar to other disadvantaged groups. That such prejudice exists is not a reason to insist on less than the Constitution requires. We do not abrogate the fullest measure of protection to which residents of the Commonwealth are entitled under the Massachusetts Constitution. Indeed, we would do a grave disservice to every Massachusetts resident, and to our constitutional duty to interpret the law, to conclude that the strong protection of individual rights guaranteed by the Massachusetts Constitution should not be available to their fullest extent in the Commonwealth because those rights may not be acknowledged elsewhere. We do not resolve, nor would we attempt to, the consequences of our holding in other jurisdictions. See id. at 340-341.[5] But, as the court held in Goodridge, under our Federal system of dual sovereignty, and subject to the minimum requirements of the Fourteenth Amendment to the United States Constitution, "each State is free to address difficult issues of individual liberty in the manner its own Constitution demands." Id. at 341.
We recognize that the pending bill palliates some of the financial and other concrete manifestations of the discrimination at issue in Goodridge. But the question the court considered in Goodridge was not only whether it was proper to withhold tangible benefits from same-sex couples, but also whether it was constitutional to create a separate class of citizens by status discrimination, and withhold from that class the right to participate in the institution of civil marriage, along with its concomitant tangible and intangible protections, benefits, rights, and responsibilities. Maintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.
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http://news.findlaw.com/nytimes/docs...iage20304.html
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I disagree. I think it is mostly a nomenclature issue. If tt creates a second, inferior class of citizens, then so do the words "man" and "woman." It's like me claiming a constitutional right to mark "female" on social security papers and college admissions. That's silly. I have no such right. Men and women are equal, and the descriptive nominatives "man" and "woman" provide factual information about the person. I don't see why the same could not be said for "civil marriage" and "civil union."
[ 02-04-2004, 04:27 PM: Message edited by: Timber Loftis ] |
