New Massachusetts Gay Marriage Ruling

[Timber Loftis]

Today's NY Times

High Court in Massachusetts Rules Gays Have Right to Marry
By TERENCE NEILAN

Published: November 18, 2003


The highest court in Massachusetts ruled today that gays have the right to marry under the state constitution, emphatically stating that the Commonwealth had failed to identify any constitutional reasons why same-sex couples could not wed.

But the ruling stopped short of allowing marriage licenses to be issued to the seven gay couples who sued the state Department of Public Health in 2001 after their requests for marriage licenses were denied. The court ordered the Legislature to come up with a solution within 180 days.

Today's ruling is similar to a 1999 Vermont Supreme Court decision, which led to the state Legislature's approval in 2000 of gay unions that give couples many of the same benefits of marriage. Courts in Hawaii and Alaska have also ruled that the states did not have a right to deny marriage to gay couples, but the decisions were followed by the adoption of constitutional amendments limiting marriage to heterosexual couples.

But the movement faces an uphill battle in the Massachusetts assembly, which is considering a constitutional amendment that would legally define a marriage as a union between one man and one woman. That proposal has been endorsed by the Speaker of the House, Tom Finneran of Boston, but other factions within the Legislature support either gay marriage or civil unions between people of the same sex.

While the ruling fell short of what the plaintiffs were seeking, it was nevertheless a victory for gay rights advocates, given the forceful language of the opinion.

"We are mindful that our decision marks a change in the history of the marriage law," the court said in its 4-3 opinion, written by Chief Justice Margaret Marshall.

"Marriage is a vital social institution," Chief Justice Marshall wrote. "The exclusive commitment of two individuals to each other nurtures love and mutual support. It brings stability to our society,

"For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. In return, it imposes weighty legal, financial, and social obligations."

She added: "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 state's Attorney General's office, which defended the Department of Public Health, argued that neither state law nor its constitution created a right to same-sex marriage. The state also said any decision to extend marriage to same-sex partners should be made by elected lawmakers, not the courts.

[Timber Loftis]

http://news.findlaw.com/nytimes/docs...e111803opn.pdf

PDF text of 90 page decision.

marriage is a legal contract about finances - two people who want to share their assets, their income, their debts, their future liabilities or benefits. you dont have to be in love, you dont have to like each other, procreation is not a pre-requisite.

who cares anything about the two people other than the fact that they agree to the merger?

corporations get less scrutiny!

[Timber Loftis]

Okay, reading the case now. Let me give you the legal skinny. Deep breath.
_______________________
PART ONE: Equal Protection
2 Tests: One regular ("rational basis") one and a heightened scrutiny ("strict scrutiny") one where a fundamental right or suspect classification is involved.

Why?
Althought Article 1 of Mass. Const. specifically prohibits sex-based discrimnation, the court did not have to decide whether sexual orientation fit this category (and therefore would be a suspect class). The court instead used the lower scrutiny test, and found that even under the lowest standard the law did not pass muster.

"Rational Basis" Test = Can an impartial lawmaker logically believe the classification would serve a legitimate public service that transcends the harm to the members of the disadvantaged class?"

____________________
PART TWO: Due Process
"Rational Basis" Test = Does the statute bear a real and substantial relationship to the public health, safety, morals, or some other phase of general welfare?"
_________________________________
Under both tests, the court held that prohibiting gay marriage could not answer "YES" to these tests, and struck it down. It addressed several arguments asserted by the state ("A" below) and others who filed amicus curiae briefs.

A: Provide a favorable setting for procreation
Nope. The laws do not privilege precreative heterosexual couples more than others. It is the exclusive commitment between partners, not ensuing children, that forms the sine qua non of marriage. Further, the State wants to facilities child-rearing by any parrent, single, married, hetero, or homo. In fact, the court said this argument singles out a difference between the two and transforms it into an essence of marriage. It impermissibly identifies persons by a single trait and then denies protection across the board. It is the state affirming a destructive stereotype of inferiority.

A: Opposite-sex couples ensure that children are raised in an "optimal" setting.
Wrong again. Restricting marriage does not further the welfare of children. Demographic changes in the past century make it such we can hardly define the "typical" family. In keeping with the notion that the children are paramount, in our era logic and compassion have continually moved to unburden children from the stigma that previously applied to illegitimacy. The State offered no evidence to support this argument, and even admitted homosexuals can make good parents. In fact, the court had in front of it some of the plaintiffs who were raising children perfectly well. There was no rational basis supporting the notion. Moreover, legal limits on the sexuality of marriage made it actually harder for those people to raise children. The court railed on this topic at length.

A: Limiting marriage to opposite-sex couples furthers the legislature's interest in conserving scarce state resources.
This argument was based on the assumption that same-sex couples are more financially independent. The court basically said the statutory ban on same-sex marriage bears no rational relation to the economy. This was basically a pffffft.

A: Including same-sex couples will trivialize marriage as it has historically been fashioned.
The decision marks a change in marriage. But it does not disturb thefundamental value of marriage. The plaintiffs only want to be married, they do not want to abolish marriage. They do not attack the binary nature of marriage, the consanguinity (incest) limits, or the gate-keeping aspects of the law. It does not diminish the dignity or validity of opposite-sex marriage any more than letting blacks and whites marry diministhed the dignity of marriage.

A: It is for the legislature and not the courts to decide.
Wrong. The Mass. Constitution requires that legislation meet certain critera. Labelling the court's role as usurping the legislatrue is misunderstanding the very nature of judicial review. The court owes deference, but decides constitutional issues. The history of constitutional law is "the story of the extension of constitutional rights and protections to people once ignored or excluded." (Citing US v. VA, which prohibited excluding women from the military.)

A: It will cause interstate conflict of law.
The court cannot predict how another state will respond, but the court can't decide thing under its constitution based on comity.

3 judges dissented in a separate lengthy opinion I haven't yet read.

[ 11-18-2003, 08:16 PM: Message edited by: Timber Loftis ]

as an intuitive thinker (INTJ, without apologies [img]tongue.gif[/img] ), it amazes me that we, as a society, have to go through so much in-depth thinking to come to what is the only reasonable conclusion. having said that, i'm pleased that the framework in place (ie the Massachusetts constitution) withstood this test of its merits. [img]smile.gif[/img]

thanks for taking the time to digest and summarise that for us, TL. totally excellent [img]graemlins/thumbsup.gif[/img] [img]graemlins/thumbsup.gif[/img] [img]graemlins/thumbsup.gif[/img]

[Azred]

As long as two people have attained the age of consent (usually 18), are not already legally bound in a marriage contract to someone else, are able to make decisions for themselves, and are not close blood relatives (for medical reasons) then those two people should be allowed to marry each other. It doesn't matter whether or not they are the same gender; in fact, I can't think of anything more trivial than whether or not two people who love each other are the same gender because all that matters is they love each other, as long as they are mature and responsible about each other. Why is everyone making it so complicated?

My only complaint about this entire situation is this: suppose two men decide to have a "union", a "social contract", or whatever you want to call it, and one of them works for a company that provides insurance coverage. That company wouldn't dare deny coverage for the man's partner. On the other hand, I couldn't get insurance coverage for Belle simply because we didn't have a piece of paper (this was not long after we met; the situation has, of course, changed). Doesn't that fit the definition of discrimination?

In response to something Timber Loftis said elsewhere [img]graemlins/beigesmilewinkgrin.gif[/img] ...we weren't merely dating at the time. We had already met the requirements for "common law marriage" in Texas, but hadn't yet tied the knot.

[Timber Loftis]

Well, Azred, that changes the analysis. In VT, I was asked to review the common law marriage requirements and report to the legislature on how it may affect civil unions. It didn't, because VT doesn't have common law marriage.

Oh, a further note (not related to Azred's post): From my analysis, I think the Mass. court would have held the same under the US constitution as it did under the Mass. constitution. Accordingly, the "solution" adopted by Alaska and Hawaii, to amend the constitution to declare marriage only to be between a man and a woman, may not be available.

[Maelakin]

Sultan is dead on. Marriage is nothing more than a legally binding financial merger, and it should be treated as a merger, not a union of lovers. In the eyes of the law, what role does love play? None.

As a side point, even the Law should not be able to tell you morally what you can and can’t do in your own home.

In response to Azred, I think adding love to a marriage is in fact doing something you suggested against, making it more complicated.

Where law concerns marriage, the only factor to be considered should be the willingness of the two parties involved. Same sex, different sex, and even people of the same family should be allowed to enter into a state of union.

When speaking of religious unions, those decisions are individual to each belief. Here is where it should matter.

I am of the opinion that, where the government is telling others marriage is not legal between two consenting adults (And this is the only parameter I find just), they are once again failing to separate church and state.

[Timber Loftis]

Maelakin, run it through the legal test I stated. While a distinction based on sex does not have a social purpose, one based on consanguinity (blood relation) does. It is well known that close relatives having children often results in mental retardation. Now, a marriage/civil union is not only a business merger. For a pure business merger, form a partnership, which is the legal entity for business partnering. Marriage/civil unions are a financial and social partnering, involving the same household most always, and involving consumation of the marriage/union in sexual intercourse most always. While each of these characteristics may not appear in all marriages, they are common to the vast vast vast majority.

Accordingly, the consanguinity rules, as well as the binary nature, should stand. And should not be threatened. Especially right now, when doing so will only raise the spectre of the "parade of horribles" that conservatives are afraid will follow.

PS, you guys need girlfriends.

timber - i greatly respect your legal opinion, however you're making a leap of interpretion i dont agree with.

that is, you call marriage a combination of financial and social partnering (i accept the extension of my "business merger" analogy). then, you go on to define what constitutes an acceptable social partnership in terms of the what the majority do as a result of getting married.

more to the point, those things you listed are not pre-requisites to a social partnership - they are the results in many cases, but not they are not the causes except with rare exceptions.

take the incestual procreation example. sure, we want to prevent brothers and sisters from having children for the reasons you stated. so let's outlaw their procreating, not their choice to live together, in a shared home, with shared benefits and responsibilities until the day they die.

ps - if i had a girlfriend, my wife would kill me. [img]tongue.gif[/img] [img]smile.gif[/img]

[ 11-19-2003, 06:56 PM: Message edited by: sultan ]