Tuesday, November 18, 2003

The Massachusetts Supreme Judicial Court yesterday ruled that homosexual couples have a constitutional right to marry, but stopped short of ordering the state to start issuing marriage licenses to same-sex couples.

Instead, the justices, by a 4-3 vote, stayed their judgment for 180 days, “to permit the Legislature to take such action as it may deem appropriate in light of this opinion.”

Referring the issue to state lawmakers, who are strongly divided on same-sex “marriage,” tempered what was otherwise a stunning legal victory for homosexual rights groups.

“This is a momentous legal and cultural milestone. At long last, gay and lesbian families and their children will finally be equal families in the commonwealth,” said Mary Bonauto, a lawyer with Gay & Lesbian Advocates and Defenders (GLAD) of Boston.

Miss Bonauto represented the seven homosexual couples, including Julie and Hillary Goodridge, who sued the Massachusetts Department of Public Health in 2001 for the right to marry.

Traditional-values groups expressed relief that the high court didn’t order state officials to start issuing marriage licenses to same-sex couples, but decried the decision as a national travesty.

It is “inexcusable for this court to force the state Legislature to ‘fix’ its state constitution to make it comport with the pro-homosexual agenda of four court justices,” said Tony Perkins, president of the Family Research Council.

“Perhaps it is time for another Boston Tea Party,” said Gary Bauer, president of American Values. “The heirs of Bunker Hill and Concord Bridge should not passively accept this decision by four robed individuals.”

The national implications of the ruling were not immediately clear. If Massachusetts begins granting civil marriage licenses to homosexual couples in June, these marriages should be valid in other states because of the U.S. Constitution’s full faith and credit clauses, which ask states to recognize each others’ legal contracts.

However, 37 states have passed laws saying they will not recognize out-of-state same-sex unions, and the federal Defense of Marriage Act of 1996 says that “other states need not recognize marriage licenses granted to same-sex couples under Massachusetts law or any other state law,” House Judiciary Committee Chairman F. James Sensenbrenner Jr., Wisconsin Republican, said yesterday.

Ron Crews, president of the Massachusetts Family Institute, yesterday urged state lawmakers to “act promptly and decisively to stop the court.” The institute has been pushing for an amendment defining marriage in the Massachusetts constitution and has many allies, including Democratic state House Speaker Thomas Finneran.

However, Ann Dufresne, spokeswoman for Massachusetts Senate President Robert Travaglini, a Democrat, yesterday cautioned that “it’s not clear just what the legislative response can and should be.”

The high court’s ruling appears to be “self-enacting,” she said, and it’s not clear “whether there’s anything more left to do.”

“That’s why we’re going to take our time and carefully and thoughtfully review this expansive document,” she said.

Elizabeth Birch, executive director of the Human Rights Campaign, the nation’s largest homosexual rights group, said yesterday’s decision was “good for gay couples, and it is good for America.”

However, she told CNN yesterday morning that what “we would have liked is for the Massachusetts Supreme Court to go all the way and construe not only the right to marry, but to order that.”

“We need to wait and see … if the Massachusetts Legislature will have the ultimate courage that the court did not have,” Miss Birch said.

The Massachusetts high court decision, written by Chief Justice Margaret M. Marshall, said it was unconstitutional to “arbitrarily” disallow same-sex couples the protections, benefits and obligations of civil marriage.

The 14th Amendment “precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one’s choice of an intimate partner,” the justices said, citing the recent Supreme Court case, Lawrence v. Texas. If anything, they added, the Massachusetts constitution is even “less tolerant” than the 14th Amendment about government intrusion in people’s private affairs.

The court further found that imposing “a marriage ban” on a class of parents was unacceptable.

“It cannot be rational under our laws and, indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation,” the ruling said.

The court also appeared to deter lawmakers from creating a civil-union law as Vermont lawmakers did in 1999 when handed a similar ruling by their high court. Civil unions confer marriagelike benefits to homosexual couples, but only if they live in Vermont.

The Massachusetts constitution “forbids the creation of second-class citizens,” the majority opinion said. It recommended instead that Massachusetts do as Canada is poised to do and redefine marriage as “the voluntary union of two persons as spouses, to the exclusion of all others.”

Massachusetts Gov. Mitt Romney, a Republican, yesterday said: “I disagree with the Supreme Judicial Court. Marriage is an institution between a man and a woman. I will support an amendment to the Massachusetts constitution to make that expressly clear.”

Miss Bonauto of GLAD, however, was not overly concerned about an amendment, which must be approved twice by Massachusetts lawmakers and ratified by voters.

“The court has said inequality must end, and we know that people support us when they understand the real human consequences of discrimination against these families,” she said.

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