By Bob Roehr
The Massachusetts Supreme Judicial Court told the state legislature that civil unions are not the same as marriage, and that civil unions would not treat gay and lesbian citizens equally, as is required under the state constitution. The ruling had been requested by the state Senate and was released on February 3.
The four member majority cited language in its original ruling when it wrote, ÒWithout the right to choose who to marry, same-sex couples are not only denied full protection of the laws, but are Ôexcluded from the full range of human experience.ÕÓ
It said the proposed civil union bill Òdoes nothing to ÔpreserveÕ the civil marriage law, only its constitution infirmityÓ of discriminating against gays. ÒThe history of our nation has demonstrated that separate is seldom, if ever, equal.Ó
ÒThe dissimilitude between the terms Ôcivil marriageÕ and Ôcivil unionÕ 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.Ó
To remove any doubt as to what they meant, the majority opinion closed with the sentence: ÒThe answer to the question is ÔNo.ÕÓ
ÒThe Court looked at this issue as a matter of principles, not of politics,Ó said Mary Bonauto, the attorney with Gay & Lesbian Advocates & Defenders, who led the legal challenge. ÒWhile we understand that some find civil unions to be a good compromise in this debate, the fact is it does not equal marriage and does not provide the same protections and rights that come with marriage.Ó
ÒThis is not just a good day for gay people in Massachusetts Ñ it’s an important moment for everyone in Massachusetts and elsewhere who believes in basic fairness,Ó said David Buckel, director of Lambda LegalÕs Marriage Project.
ÒThis opinion means that all Massachusetts citizens in loving and committed relationships will be treated equally by the state,Ó said Patrick Guerriero, executive director of Log Cabin Republicans.
“As a former legislator, I’m confident that lawmakers will focus on what’s important to Massachusetts families and embrace this as a positive step forward,Ó said Cheryl Jacques, president of the Human Rights Campaign (HRC). ÒIt’s time to turn attention to important issues that strengthen the families of Massachusetts, rather than focusing on a divisive and costly battle to write discrimination into the state constitution.”
Far right social conservatives cranked up the volume more than ever in denouncing Òactivist judgesÓ and calling on Massachusetts legislators to pass an amendment to the state constitution outlawing gay marriage. They also are urging passage of a federal constitutional amendment and some are proposing language even more radical than that of the Federal Marriage Amendment (FMA) already introduced in Congress.
Gary Bauer, president of American Values, stated, ÒA constitutional crisis is not at handÓ because Òmarriage in America is no longer the exclusive union of one man and one woman.Ó
He went on to attack front-running democratic presidential candidate John KerryÕs claim that he does not support gay marriage as one that Òrings hollow,Ó because Kerry was one of just 14 Senators to vote against the Defense of Marriage Act in 1996.
Bauer also told the media that President Bush’s endorsement of the FMA was imminent, perhaps as soon as his Sunday appearance on Meet the Press. That did not happen. The President’s spokesman has said that Bush is Òdeeply concernedÓ by the ruling.
Senate Majority Leader Bill Frist vowed, “We must protect, preserve and strengthen the institution of marriage against activist judges. If that means we must amend the Constitution, as seems increasingly likely, then we will do just that.”
Frist, like the President, is making all of the right noises to play to irate social conservatives, yet neither has directly endorsed the FMA.
Leading democratic presidential contender Sen. John Kerry is doing his own waffling. The Los Angeles Times reported, when pressed at a Portland, Maine rally for his position on the Massachusetts Court’s advisory opinion he said, “Look, I support equal rights and the right of people to have civil unions, equal partnership rights, I don’t support marriage. I never have. That’s my position.”
When asked about endorsing a constitutional ban on gay marriage, Kerry said he “would have to see what language there is.”
A joint session of the Massachusetts House and Senate is scheduled for February 11 to consider an amendment to the state constitution limiting marriage to Òonly the union of one man and one woman.Ó Both politicians and the public seem fairly closely divided on the subject, with many still grappling with the issues.
Should both chambers pass the amendment, they will have to vote upon it again in 2005 and put it to public referendum in 2006.