November 18, 2003
Photo: A homosexual couple get married in Spain. The Supreme Court of Massachusetts ruled in favor of same-sex marriage, arguing that barring gay and lesbian couples from the benefits of a civil marriage was "unconstitutional" (AFP/EFE/File)
BOSTON — The highest court in Massachusetts on Tuesday ruled that gay couples there cannot be denied the right to marry by the state.
The Supreme Judicial Court ruled that same-sex couples are legally entitled to wed under the state Constitution, but stopped short of immediately allowing marriage licenses to be issued to the couples who challenged the law.
Massachusetts may not "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry," the court ruled, according to a posting on its Web site.
The court is giving the Legislature 180 days to "take such action as it may deem appropriate in light of this decision," which means the decision will not take affect until then.
The ruling was 4-to-3 in a case that has become the focus of international attention. Advocates on both sides are predicting the court could make Massachusetts the first state in the nation to legalize gay marriage.
"They said basically to the Legislature we really think this is your job," Wendy Murphy, a former sex crimes prosecutor and victims advocate, told Fox News, adding that the court took an activist role in its decision, but backed up enough to give the Legislature the authority to make same-sex marriages legal.
The lawsuit was filed by seven gay couples who sued the state Department of Public Health in 2001 after their requests for marriage licenses were denied. They argued they had the right to marry under the state Constitution and said that forbidding homosexuals to marry is discrimination along the same lines as forbidding interracial couples to marry.
But a Superior Court judge dismissed their suit in May 2002, ruling that state law does not convey the right of marriage to gay couples, and the couples appealed.
Because of Article 4 in the U.S. Constitution, known as the Full Faith and Credit clause, other states would have to honor marriages performed in Massachusetts under a reciprocity agreement.
In other words, if a gay couple got married while on vacation in Massachusetts, their home state would also have to consider them married — unless those states had a so-called defense of marriage act, which explicitly defines marriage as only being between a man and a woman. Thirty-seven states have such laws.
The high court heard arguments in March, and hundreds of organizations and individuals across the country filed briefs on both sides of the argument.
Photo: Gary Chalmers, left, and Rich Linnell, right, both of Northbridge, Mass., sit on a bench in front of their home, in Northbridge, in this July 31, 2003 file photo. The couple is one of seven plaintiffs in a closely watched lawsuit that claims same-sex couples have the right to wed under the state constitution. The Massachusetts Supreme Judicial Court is expected to hand down thier ruling on the case Tuesday morning Nov. 18, 2003. (AP Photo/Steven Senne, file)
The court had three options: instructing the state to give marriage licenses to the seven couples; upholding the state's authority to deny same-sex couples the right to wed; or referring the matter to the Legislature. The Legislature is already considering various competing proposals to outlaw or to legalize gay marriages or civil unions.
Many legal experts had thought the court would pass off the political hot potato to the Legislature for a final decision.
"They did, in a very activist style, sort of trump the power of the Legislature," Murphy said. "This is a very important decision."
The big question that looms now is whether the U.S. Supreme Court will take up the issue and/or step in on the Massachusetts case.
"The United States Supreme Court, at this point, doesn't really have a voice, it doesn't really have a decision" in the Massachusetts case, Murphy said. "There really are no federal issues."
Courts in Hawaii, Alaska and Vermont have previously ruled that banning gay marriage was unconstitutional, but no American court has ordered the issuance of a marriage license to gay partners, effectively legalizing gay marriage.
The ruling closely matches the 1999 Vermont Supreme Court decision, which led to its Legislature's approval in 2000 of civil unions that give couples many of the same benefits of marriage.
Under the Supreme Judicial Court's internal guidelines, a decision would have been due in early July. But the court waived that rule, leading to a monthslong wait for a verdict.
The Massachusetts Legislature had been considering a constitutional amendment that would legally define marriage as a union between one man and one woman. The amendment would bring Massachusetts in line with 37 states that have already passed defense of marriage acts defining marriage as a one male-one female union.
State Speaker of the House Tom Finneran of Boston had endorsed a defense of marriage act, and the Legislature last year defeated a gay marriage initiative.
"If there is huge public outcry about this and the public says, 'Look, let's amend the Constitution so this decision never takes effect,' then the Legislature can do this. I don't think they will," he said.
A poll released Tuesday by the Pew Research Center for the People & the Press found that opposition to gay marriage has grown since midsummer, with 32 percent favoring it and 59 percent opposing it. In July, 53 percent said they opposed gay marriage.
http://www.foxnews.com/story/0,2933,103399,00.html