- The Washington Times - Thursday, February 5, 2004

The Massachusetts Supreme Judicial Court yesterday told state lawmakers that only “marriage” for homosexuals — not civil unions — is constitutional, guaranteeing that the nation’s first same-sex “marriages” will occur this spring.

Making civil unions for homosexuals, but keeping marriage for heterosexuals, creates an “unconstitutional, inferior and discriminatory status for same-sex couples,” the high court said in its 4-3 opinion. “The history of our nation has demonstrated that separate is seldom, if ever, equal.”

The court’s Feb. 3 opinion, which became public yesterday when it was read into the state Senate record, dashed any hopes for a political compromise and removed any doubt that, in the court’s view, the state should begin issuing marriage licenses to homosexual couples on May 17.

Massachusetts Senate President Robert Travaglini, who had asked the court to weigh in on a bill to give marital rights and privileges to same-sex couples through civil unions, said he wanted to talk with colleagues before deciding what to do next.

“I want to have everyone stay in an objective and calm state as we plan and define what’s the appropriate way to proceed,” Mr. Travaglini said.

Massachusetts Gov. Mitt Romney, a Republican who also had expressed interest in legalizing civil unions, said yesterday: “We’ve heard from the court, but not from the people.”

“The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage,” Mr. Romney said. “This issue is too important to leave to a one-vote majority of the [high court]. This is why it’s imperative that we proceed with the legitimate process of amending our state constitution.”

A constitutional convention is scheduled for Feb. 11 to allow lawmakers to consider a bill to amend the Massachusetts constitution to define marriage as the union of one man and one woman.

If such a change is approved by Massachusetts lawmakers and voters, the high court’s decision could be overturned.

But approval for such a bill — which is not certain — is only the first step in a lengthy amendment process. November 2006 is the earliest the public could vote on amending the constitution, said Ron Crews, president of the Massachusetts Family Institute, which supports traditional marriage.

Yesterday’s opinion reinforces the high court’s 4-3 decision on Nov. 18 in Goodridge v. Department of Public Health, which legalized homosexual “marriage” in Massachusetts. The same four justices supported both decisions.

The Nov. 18 ruling gave lawmakers 180 days to react to the ruling, and in December, the Senate asked the court whether a bill creating civil unions for same-sex couples was constitutional. Such unions, the Senate said, would provide homosexual couples with the “benefits, protections, rights and responsibilities” of marriage, while “preserving the traditional, historic nature and meaning of the institution of civil marriage.”

In its ruling yesterday, the four justices rejected the Senate civil-union bill, saying that the “same defects of rationality evident in the marriage ban considered in Goodridge are evident in, if not exaggerated by, the [Senate bill].”

Instead of preserving civil marriage, they added, the Senate bill only preserves the “constitutional infirmity” of the current marriage law.

Homosexual rights supporters hailed the court’s ruling. They rejected “unconstitutional governmental discrimination,” said Mary Bonauto of the Gay & Lesbian Advocates and Defenders, which represented the seven homosexual plaintiffs in the Goodridge case.

Meanwhile, a law already on the books might hamper out-of-state homosexual couples from “marrying” in Massachusetts.

“No marriage shall be contracted in this commonwealth by a party residing and intending to reside in another jurisdiction if such marriage would be void if contracted in such other jurisdiction,” says a Massachusetts general law regarding nonresident marriage.

Thirty-seven states outlaw same-sex “marriage,” and Ohio is poised to become the 38th.

Massachusetts’ nonresident law, plus its one-year residency requirement for divorce, has caused some homosexual rights groups to discourage out-of-state couples from “marrying” in Massachusetts.

However, legal scholars on both sides of the issue agree that it’s only a matter of time before nonresident homosexual couples “marry” in Massachusetts, return home and file lawsuits to gain recognition of the unions.

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