Thursday, February 5, 2004

The decision Wednesday by the Massachusetts Supreme Judicial Court, in a 4-3 ruling, that civil unions for same-sex couples would be unconstitutional is unfortunate, but not surprising. In November, the court legalized same-sex “marriage” in Massachusetts and gave lawmakers until May 17 to react to the decision. The court now says that nothing short of full marriage rights for same-sex couples would be considered constitutional.

State lawmakers are scrambling to find some loophole in the court’s decision to avert the need to amend the state constitution. It’s highly unlikely one will be found before the legislature meets Feb. 11 for a constitutional convention. Yet even if an amendment passes the legislature, the state constitution could not be amended until 2006.

Starting May 17, however, same-sex couples presumably may start filing for marriage licenses from city and town officials. But only the state government has the authority to recognize marriage licenses. The high court has no authority to force the legislature to pass a same-sex marriage bill, and city and town officials are answerable to the governor. This presents a problem if the governor disregards the high court. It gets more confusing. If a certain city or town refuses to grant a marriage license, a same-sex couple could presumably appeal the matter to the courts. This option would make the courts the sole arbiter on the same-sex marriage question. Perhaps this was the goal all along.

More importantly, starting on May 17, Massachusetts can expect a flood of out-of-state same-sex couples coming to take advantage of the legal muddle. Currently, 38 states have passed the Defense of Marriage Act. The states that haven’t, and the District as well, should expect a similar challenge in their legal systems when the “married” couples return. Even in states where same-sex marriage is illegal, the obvious goal would be to challenge the law in the courts.

The Massachusetts Supreme Judicial Court has exposed as naive the idea that same-sex marriage should be left entirely to the states. We have argued before that given current judicial trends, same-sex marriage is likely to become the law of the land without an amendment to the U.S. Constitution. We hope that President Bush, making good on his State of the Union Address, will see the Massachusetts example for what it is: Judicial activists tampering with the founding institution of humanity regardless of the will of the people.

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