NewsWrap
An expanded edition for the week ending November 22, 2003
(As broadcast on This Way Out program #817, distributed 11-24-03)
[Written by Cindy Friedman, with thanks to Graham Underhill, Fenceberry, Rex 
Wockner, and Greg Gordon]


Anchored this week by Cindy Friedman and Jon Beaupré


  It seems inevitable that the United States' first legal gay and lesbian 
marriages will be performed in six months in Massachusetts, following a ruling by 
the state's top court this week that will significantly impact the entire 
nation.
A 4-to-3 majority of Massachusetts' Supreme Judicial Court declared 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."  With a nod to the top court in the 
Canadian province of Ontario, Massachusetts' highest court has now defined marriage 
there as "the voluntary union between two persons".  That goes beyond previous 
U.S. decisions supporting same-gender marriage by the state Supreme Courts of 
Hawai'i and Vermont.  It appears to require full marriage equality in 
Massachusetts, and the gay and lesbian plaintiffs there won't settle for some 
alternative recognition of civil unions or domestic partnerships.  As the state's 
highest court ruling on state law, there is no further judicial appeal.  


  The court did not order that marriage licenses immediately be issued to the 
plaintiff couples who'd previously been denied them.  The Massachusetts 
justices stayed the impact of their ruling for 6 months to allow the legislature to 
take action.  But it seems that only an amendment to the state Constitution 
can actually stop gays and lesbians from marrying in Massachusetts, and that 
process would take at least 2 years.  So it appears that -- at least for a 
matter of months -- the state of Massachusetts will be issuing valid marriage 
licenses to gay and lesbian couples.  


  These first U.S. same-gender marriages will set the stage for the first 
courtroom tests of laws now explicitly prohibiting the recognition of such 
marriages in 37 of the 50 states, and of the 1996 federal so-called "Defense of 
Marriage Act", known as DOMA.  This lends fuel to the current religious right 
proposal to further ban gay and lesbian marriages with the so-called "Federal 
Marriage Amendment" to the U.S. Constitution, an effort that's expected to be a 
major feature of the 2004 Presidential campaign.  
Republican U.S. President George W. Bush quickly responded with a statement 
that, "Marriage is a sacred institution between a man and a woman.  Today's 
decision of the Massachusetts Supreme Judicial Court violates this important 
principle.  I will work with congressional leaders and others to do what is 
legally necessary to defend the sanctity of marriage."
As the usually staid "Wall Street Journal" put it, "The culture wars just 
went nuclear."


  The case known as "Goodridge versus Department of Health" -- referring to 
the state agency administering marriage laws -- was brought by 7 gay and 
lesbian couples who had first sought and been denied marriage licenses in various 
Massachusetts jurisdictions.  They were represented by GLAD, Gay and Lesbian 
Advocates and Defenders, the group that won the Vermont state Supreme Court 
decision that led to the creation of the United States' first civil unions.
The Massachusetts ruling acknowledged "that our decision marks a change in 
the history of marriage law".  That may have been part of the reason the panel 
took about 4 months more than its customary self-imposed time limit to issue 
its finding.
 
  Chief Justice Margaret Marshall wrote for the majority, "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 decision itself described the Massachusetts constitution as "more 
protective of individual liberty and equality than the federal Constitution," perhaps 
"demand[ing] broader protections for fundamental rights; and ... less 
tolerant of government intrustion into the protected spheres of private life."  The 
court held that the state constitution "forbids the creation of second class 
citizens."
The majority declared that, "Our obligation is to define the liberty of all, 
not to mandate our own moral code."  
"The marriage ban works a deep and scarring hardship on a very real segment 
of the community for no rational reason."


  Answering the state's arguments describing hetero-exclusive marriage as a 
"favorable setting for procreation" and child-rearing, the court's majority 
said, "It is the exclusive and permanent commitment of the marriage partners to 
one another, not the begetting of children, that is the sine qua non of civil 
marriage."  
The state also asserted that it was defending the institution of marriage, 
but the court's majority responded that the plaintiffs "seek only to be married, 
not to undermine the institution of marriage."
The decision found that the state "has failed to identify any 
constitutionally adequate reason for denying civil marriage to same-sex couples."


  The three dissenting justices all joined in their three separate opinions 
on different themes, all focused on legal concerns and worded in a manner 
respectful of gays and lesbians.  Primarily they all emphasized that, as Justice 
Francis Spina put it, "The power to regulate marriage lies with the Legislature, 
not with the judiciary."  
But Spina also also denied that there is any marriage discrimination since 
each plaintiff "is free to marry a willing person of the opposite sex."


  Justice Robert Cordy's dissent acknowledged that "it may be desirable for 
many reasons to extend to same-sex couples the benefits and burdens of civil 
marriage (and the plaintiffs have made a powerfully reasoned case for that 
extension)".  But he wrote that the state marriage statute historically referred to 
one man and one woman, and asserted that that passed constitutional muster 
because "the Legislature could rationally conclude that it furthers the 
legitimate state purpose of ensuring, promoting and supporting an optimal structure 
for the bearing and raising of children." 


  Justice Martha Sosman noted that scientific research has yet to yield clear 
findings on the outcome of parenting by gay and lesbian couples relative to 
heterosexual marriage, and wrote, "As a matter of social history, today's 
opinion may represent a great turning point that many will hail as a tremendous 
step toward a more just society.  As a matter of constitutional jurisprudence, 
however, the case stands as an aberration."


  But for the plaintiffs and their attorneys, the ruling was a victory to 
savor, and they shared their celebration with reporters.  Attorney Mary Bonauto 
of Gay and Lesbian Advocates and Defenders:
"It's obviously an historic day, November 18th, 2003, and it's an historic 
day because, finally, all families in the Commonwealth of Massachusetts will 
have the opportunity to be equal families under the law.  We all know that civil 
marriage is an enormous government construct, the most comprehensive 
protections for families that exists.  What comes along with it are hundreds of real 
bread and butter protections for families and protections in times of tragedy 
and crisis and emergency... Some court has finally had the courage to say this 
really is an issue about human equality and human dignity, and it's time that 
the government treat these people fairly."
Plaintiff couple Gloria Bailey and Linda Davies:
(Gloria) " Without a doubt this is the happiest day in our lives."
(Linda) " I finally asked her to marry me, because she told me she couldn't 
answer until we could legally do it.  And I'm happy to tell the world she 
said... yes."
Plaintiff Mike Horgan:
"Today in the Commonwealth of Massachusetts Ed and I are finally full and 
equal citizens. "
Plaintiff Hillary Goodridge told ABC-TV's "Nightline" how her daughter 
inspired their marriage activism when then 6-year-old Annie was asked to name people 
who loved each other:
"...and she listed off a whole group of people, and I realized each one of 
these groupings were heterosexual married couples, and so I said to Annie, 
'Well, what about Ma and Mummy, don't we love each other?' and she said, 'You don't 
love each other.'  I said, 'What do you mean?' and she said, 'If you loved 
each other you'd be married.'"
Hillary's partner Julie Goodridge at that celebratory press conference:
"We thank you to the Supreme Judicial Court of the state of Massachusetts for 
seeing what we know to be true, which is that we are a couple that is worthy 
of the protections of marriage, and that after 16 and a half years, Hillary 
and I are finally going to be able to get married and protect our family."
Gays and lesbians elsewhere joined the celebration, most notably in San 
Francisco, where a rally in the heavily gay Castro District led to a 5-block parade 
by some 200 people wearing everything from wedding gowns to Boston Red Sox 
baseball team gear.


  But for Massachusetts' politicians, the decision poses a heavy burden.
The state's Republican Governor Mitt Romney -- no supporter of same-gender 
marriage -- declared:
"We obviously have to follow the law as provided by the Supreme Judicial 
Court, even if we don't agree with it.  We're gonna follow it in terms of 
preparing legislation which conforms with the law.  But we will at the same time 
initiate a constitutional amendment process, and that constitutional amendment 
process will be consistent with what I think the feelings are of the people of the 
Commonwealth, and of course, uh, the entire sweep of recorded history." 
Massachusetts Representative Phil Travis is a Democrat, but he was already 
working towards a state constitutional amendment to prohibit same-gender 
marriage, and is now intensifying those efforts.  He told reporters:
"I am in no quick hurry to condone the action of the Massachusetts Supreme 
Judicial Court.  I think it flies in the face of what we know in Massachusetts 
as marriage, and have demonstrated since our founding..."
Democratic Massachusetts House Speaker Tom Finneran also supports an 
amendment against same-gender marriages, and has steadily opposed legal domestic 
partnerships.


  Romney, Democratic Attorney-General Thomas Reilly, and some leading state 
lawmakers, believe they can create what the governor referred to as "a civil 
union type provision" that will satisfy the state's high court.  Most legal 
experts disagree, and any such move would definitely be challenged in court by the 
current plaintiffs and GLAD.  From the other side, if a civil union law were 
enacted quickly, a repeal initiative could be placed before the voters as 
early as November 2004.
Massachusetts lawmakers are already being deluged with communications 
protesting same-gender marriage in a campaign organized by religious right groups.


  Meanwhile, the Romney administration quickly advised all Massachusetts 
municipalities that no marriage licenses should be issued to gay and lesbian 
couples during the 180-day stay the court imposed on its own ruling.  The only town 
that seemed to have a problem with that was Cambridge, where some City 
Councilmembers appeared eager to make it the site of the nation's first same-gender 
marriage, but GLAD and other gay and lesbian activists have also publicly 
asked them to withhold licenses for the court's waiting period.


  Massachusetts notably pioneered programs supporting lesbigay youth in its 
public schools.  A number of open gays and lesbians have been elected to office 
there, most notably Democratic U.S. Congressmember Barney Frank.  Frank said 
in a debate with religious conservative Jerry Falwell on CNN:
"When Vermont did civil unions, there were all kinds of predictions of chaos 
and marriages dissolving.  None of those have proven to be the case.  If 
you're a heterosexual living in Vermont today, civil unions have no effect on you 
whatsoever... And I think, by 2006 people will see that in Massachusetts as 
well."
But it's also a state with a large Roman Catholic population, and the state's 
leading Catholic clergy have for months been speaking out themselves against 
legal recognition of same-gender couples and calling on Catholics to actively 
oppose it as well.


A Pew poll taken in October found that overall about 60% of Americans oppose 
equal marriage rights for same-gender couples, compared to about 32% 
supporting them.
One unnamed Democratic strategist was quoted by the "Wall Street Journal" as 
saying, "We knew the Supreme Court would do anything to help re-elect Bush -- 
we just didn't know it would be the supreme court of Massachusetts."


  Numerous state-level politicians across the U.S. also reacted to the 
Massachusetts ruling, many moving to enact laws or constitutional amendments to 
block any recognition of or moves toward same-gender marriages.


  And finally... given the polling against same-gender marriage and the 
religious right campaign for the Federal Marriage Amendment against it, the gay and 
lesbian advocacy group Human Rights Campaign this month launched a 
million-dollar print ad campaign to put a face on the issue.  One of the five original 
ads featured Massachusetts's plaintiff couple the Goodridges and ran in 
newspapers there.  HRC's ads are earnest and affecting in making their case for the 
benefits and protections of marriage for gay and lesbian families.  But they 
might take a tip from their counterparts in Canada to use a lighter touch.  The 
first married gay couple there -- Kevin Bourassa and Joe Varnell of Toronto -- 
have taken the lead in a massive, largely volunteer effort to put together 3 
broadcast ads supporting same-gender marriage.  The theme chosen by Toronto ad 
agency Zig for the campaign is "What's wrong with gay marriage?"
[:30 radio ad "Complaints" runs in its entirety; www.equalmarriage.ca]