NewsWrap for the week ending February 7, 2004 (As broadcast on This Way Out program #828, distributed 2-9-04) [Written by Cindy Friedman, with thanks to Graham Underhill, Fenceberry, Rex Wockner, and Greg Gordon] Anchored this week by Rick Watts and Cindy Friedman Massachusetts' top court this week clarified that only full equal marriage rights for same-gender couples -- under the same name applied to marriage for heterosexual couples -- is acceptable under the state constitution. The Supreme Judicial Court had ruled in November that it is illegal discrimination for the state to deny marriage to gays and lesbians. The Massachusetts Senate asked the court if reserving the term "marriage" exclusively for heterosexual couples, while creating "civil unions" with equivalent legal status for gays and lesbians, would meet constitutional muster. The final sentence of the high court's majority opinion is, "The answer to the question is 'No.'" And because this is a matter of state law, there is no further legal appeal. That was the same 4-to-3 majority that originally ruled for marriage equality in "Goodridge versus Department of Public Health". A dissenting opinion noted that requiring the same-gender institution be called "marriage" could actually prevent Massachusetts from trying to compensate those couples for the unequal treatment they receive from the federal government and other states. But the majority found that the Senate bill "maintains an unconstitutional, inferior, and discriminatory status for same-sex couples" in violation of constitutional rights to due process and equal protection under the law. Rejecting arguments of tradition, the ruling declared, "This is not a matter of social policy but of constitutional interpretation," noting that marriage involves intangible benefits as well as tangible ones. The court found the civil unions proposal even exaggerated the discriminatory nature of the existing law, writing that, "Because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status... [G]roup classifications based on unsupportable distinctions, such as that embodied in the proposed bill, are invalid under the Massachusetts Constitution. The history of our nation has demonstrated that separate is seldom, if ever, equal." The phrase "separate but equal" -- and its refutation -- refer to the famous U.S. Supreme Court decision in "Brown versus Board of Education" that struck down racial segregation. As it happens, the 50th anniversary of that landmark ruling falls on the same mid-May date that the "Goodridge" ruling will become effective and Massachusetts gay and lesbian couples can obtain marriage licenses. Even though state Attorney General Thomas Reilly opposes marriage equality, he announced, "The Supreme Judicial Court has clearly spoken. Same-sex couples have the constitutional right to marry under Massachusetts law." Other leading politicians in the state are scrambling to find some looph ole, but there's general agreement they will fail to avert or delay legal gay or lesbian marriages. According to a footnote in the court's decision, the way to succeed would be to stop providing "marriages" to heterosexuals as well. Realistically, opponents' best hope appears to be a state constitutional amendment to override the court, but although that process has already started, it would take about 3 years to complete. Even with that amendment, many believe any marriages contracted in the interim could not be retroactively negated. Massachusetts' Republican Governor Mitt Romney insisted that the voice of the people has not been heard, and wrote an opinion piece in the "Wall Street Journal" calling on the public to actively lobby at every level of government to, in his words, "protect marriage." He did say that, "It is important that the defense of marriage not become an attack on gays, on singles or on nontraditional couples." Even before the latest ruling was handed down, Massachusetts' Democratic Pa rty adopted a resolution opposing any constitutional amendment that would discriminate against gays and lesbians, including a marriage ban. U.S. Senator John Kerry, who represents Massachusetts and currently is the leading hopeful for the Democratic Presidential nomination, objected to the court's ruling. While calling civil unions the "right answer" for equal treatment for gays and lesbians, he insists that he opposes marriage for them. He declared that he will fight any effort to identify him with so-called "gay marriage". Republican U.S. President George W. Bush issued a statement calling the latest ruling "deeply troubling". Echoing earlier statements, he wrote, "Marriage is a sacred institution between a man and a woman. If activist judges insist on redefining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage." Some conservatives do not believe the separation of church and state under the U.S. Constitution applies to such issues. The Massachusetts clarification definitely heats up the issue not only for the Presidential campaign but also the movement to add a same-gender marriage ban to the U.S. Constitution. While the so-called Federal Marriage Amendment already introduced in the House of Representatives has not been given a high priority for action this session, Republican Senator from Texas John Corwyn was spurred by the decision to announce he'll lead the proposed amendment through the upper house. And of course more than a dozen states are currently debating constitutional amendments to prevent same-gender marriages. This week one such measure was passed by the Indiana state Senate by a whopping 6-to-1 margin. But while Republicans control that Senate, Democrats control the House, where the proposal is unlikely to reach a floor vote. Democratic Governor Joe Kernan has called the move unnecessary. Ohio this week became the 38th state to enact legislation denying legal recognition to same-gender marriages, as a bill received both its final OK from the legislature and Republican Governor Bob Taft's signature. While typical so-called "Defense of Marriage Acts" stop there, Ohio's goes another step to explicitly prohibit state agencies from extending spousal benefits to unmarried domestic partners, regardless of gender. Utah enacted legislation beginning more than a decade ago to deny legal recognition to same-gender marriages that existed nowhere in the world at the time, and has expanded that law since. Last week all but one state Senator voted for a bill to broaden the scope of same-gender relationships that will not be recognized to include civil unions and common-law marriages. A Washington state appellate court this week upheld a ruling imposing on a lesbian break-up the same property division requirements applied to divorcing married couples. It's believed to be the first such appeals court decision in that state. A 3-judge panel found the couple's decade together to be "suffic iently marriage-like to provide equitable relief" on dissolution. The opinion said that, "Whether same-sex couples can legally marry is for the Legislature to decide. But the rule that courts must 'examine the relationship and the property accumulations and make a just and equitable disposition of the property' is a judicial, not a legislative, extension of the rights and protections of marriage to an intimate, unmarried couple." And finally... Fort Lauderdale police detective Mike Nahum may be too sexy for his job, as an appellate court in Florida heard last month. In an undercover sting at a club, Nahum asked Julio Blanco if he liked to "party". To Nahum, that meant drugs, but it meant sex to Blanco, a self-described "lonely gay man." Nahum pressed Blanco to buy some cocaine for him, and Blanco said no 3 times and even tried to leave, before he finally went to the men's room and obtained some methamphetamines for Nahum. Broward Circuit Court Judge Susan Lebow had dismissed the charges on grounds of entrapment when she heard the case in 2002. She said then, "[T]he detective walked in dressed in a T-shirt and jeans, and for the record he was a very attractive man..." Blanco's defense attorney Kevin Kulik seized on that phrase "for the record," and requested and received from Judge Lebow an official finding of Nahum's attractiveness. It isn't every man who has a court declaration of his good looks -- but it didn't please Nahum, who insisted he hadn't made any effort to make himself attractive to Blanco. The appellate majority agreed there was entrapment, though, citing Nahum's "non-verbal communication".