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By Mubarak Dahir
Soon after Massachusetts’ Superior Judicial Court ruled 10 a.m. on Tuesday, November 18, that the state could not deny civil marriage rights to same-sex couples, my e-mail box began getting flooded with exclamatory declarations from gay rights groups around the country.
“VICTORY!” screamed one headline.
“MARRIAGE!” trumpeted another.
And “WE WON!” celebrated a third.
It’s hard not to get excited about the long-awaited declaration from Massachusetts’ highest court 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 That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under the law.”
I, too, got goosebumps reading the eloquent words of Superior Judicial Court Justice, who wrote that gays and lesbians “are members of our community, our neighbors, our coworkers, our friends. We share a common humanity Simple principles of decency dictate that we extend to the plaintiffs, and to their new status, full acceptance, tolerance, and respect. We should do so because it is the right thing to do.”
Yes, gays and lesbians in Massachusetts, and around the country, should be thrilled at the court’s 4-3 ruling.
But we should be careful before declaring full victory yet.
Too often in the past, we as a community and as a political movement have underestimated our political foes. We shouldn’t do that again, particularly on a subject as emotionally volatile to straight people as the institution of marriage.
The fight to get real marriage, not some watered-down substitute version like civil unions in Vermont, isn’t over in Massachusetts. It’s really just beginning.
While the Massachusetts court ruled that gays and lesbians shouldn’t be denied civil marriage, it stopped short of ordering the state to go ahead and start issuing marriage licenses to same-sex couples. Instead, it gave the legislature 180 days roughly six months “to permit the Legislature to take such action as it may deem appropriate in light of this opinion.”
And this is where the legal squabbling and political nitpicking begins.
Gay and lesbian marriage advocates say the legislature has no recourse but to amend the law to recognize same-sex marriages, and begin issuing regular old marriage licenses to gay and lesbian couples. In the best of all worlds, that’s exactly what should happen.
But we don’t live in the best of all worlds. We live in the real world, where the opponents of equal marriage rights to gays and lesbians are not just comprised of rabid right-wing zealots. Even many so-called “moderate” straight people who say they support the notion of gay and lesbian rights shrink at the prospect of allowing us to join equally in their precious institution of marriage.
That’s why there is already talk of a “civil unions opt-out” for the Massachusetts legislature. Some scholars are arguing that, just as in Vermont, the court didn’t say how the legislature had to give gay and lesbian couples the rights and responsibilities of marriage only that they had to provide some equivalent venue to do so.
There’s already a move in the state legislature to pass a constitutional amendment in Massachusetts that would spell out marriage as a union only between one man and one woman. The proposed amendment has the backing of the powerful Speaker of the House, Tom Finneran of Boston. Within hours of the ruling, Massachusetts Governor Mitt Romney expressed his opposition to it, and said he would fight it.
We shouldn’t forget that in the past, courts in both Hawaii and Alaska ruled that the states couldn’t deny marriage to same-sex couples. In both states, the legislatures responded with constitutional amendments limiting marriage to heterosexuals.
Most observers agree that will be harder to do in Massachusetts. Even if such an amendment were to find favor in the statehouse, it would have to be approved by two different legislatures (in 2004, and then again in 2005), and then it would have to be ratified by voters, in 2006. That’s a pretty high hurdle to mount.
In the meantime, however, the legislature has about six months to decide just what to do about the prickly issue of homosexual weddings.
The fallacies of the “separate but equal” legal doctrine have long been exposed for the fraud that they are. Without marriage licenses, there just won’t be equality.
Advocates, activists, national lobby groups and everyday gay and lesbian people in Massachusetts shouldn’t settle for anything less, just like any other loving couple. They need to put enormous pressure on their legislative representatives to do the right thing. And we need a massive public education campaign in the state to inform citizens why granting marriage licenses is the only right thing to do. God knows our opponents are going to be maneuvering with swift and mighty power to try to prevent it from happening.
So as individuals and as a movement, we should go ahead and party today, and celebrate the inspiring good news of the Massachussets’ high court ruling.
But we should be careful not to get too drunk off our limited good fortune, or we may wake up facing another political hangover.