Court Reaffirms Support For Gay Marriage

The Massachusetts high court yesterday issued a sweeping defense of same-sex marriage and flatly rejected as unconstitutional a proposed compromise bill on civil unions.

The 4-3 decision by the Supreme Judicial Court (SJC), which clarified its historic November ruling, paved the way for same-sex marriages to begin in Massachusetts on May 17.

“The dissimilitude between the terms ‘civil union’ and ‘civil marriage’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status,” the justices wrote.

In November, the SJC gave the state Legislature 180 days to grant same-sex couples the right to wed.

The state Senate responded by asking the court to examine a bill which would have afforded same-sex couples the same benefits and protections of marriage, but without the moniker.

Yesterday, the SJC said the bill didn’t go far enough, and explicitly rejected the state Senate’s proposal of civil unions.

“The answer to the question is ‘No,’” they said.

Opponents of the court’s decision were left with little recourse to prevent what would be the nation’s first gay marriage law. A convention of state legislators scheduled to convene next Wednesday could attempt to amend the constitution to define marriage as a union between a man and a woman, but the amendment could not be posed to voters until 2006 at the earliest.

“There’s literally nothing—short of a meteor, I suppose—that could get in the way of implementing gay marriage in this state on May 17,” Tyler Professor of Constitutional Law Laurence H. Tribe ’62 said in the wake of yesterday’s decision.

Tribe last month authored a friend-of-the-court brief signed by 90 law professors from around the country, including 18 from Harvard Law School, urging the court to strengthen its November ruling with explicit support for same-sex marriage.

State and national politicians from both major parties decried the court’s decision yesterday.

Leading Democratic presidential candidate Sen. John F. Kerry, D-Mass., said in a statement that he supported full rights for gay couples but not marriage.

“I believe the right answer is civil unions,” he said. “I oppose gay marriage and disagree with the Massachusetts Court’s decision.”

Kerry’s opponents in the Democratic primary have previously issued similar opinions.

Adam P. Schneider ’07, public relations chair for the Bisexual, Gay, Lesbian, Transgender and Straight Alliance, expressed concern about politicians who have opposed gay marriage.

“I think that all of them should come out in favor of gay marriage, but currently the political atmosphere in the United States is not conducive in most mainstream politics,” said Schneider, who is also a Crimson editor.

The state Legislature appeared ready to pursue a constitutional amendment and Gov. W. Mitt Romney, R-Mass., encouraged that course of action in a statement released yesterday.

“We’ve heard from the court, but not from the people....This issue is too important to leave to a one-vote majority of the SJC,” he said.

The dissenting opinions dismissed the majority’s semantic distinction, and Justice Martha B. Sosman quoted William Shakespeare in her dissent.

“What’s in a name? That which we call a rose / By any other name would smell as sweet,” Sosman wrote.

The SJC’s majority opinion invoked the words of the U.S. Supreme Court’s historic Brown v. Board of Education decision.

“The history of our nation has demonstrated that separate is seldom, if ever, equal,” the justices wrote.

Kenan Professor of Government Harvey C. Mansfield ’53 called the majority opinion “outrageous and outlandlish,” and decried the court for overstepping its bounds.

“They’ve just taken the phrase of equal protection that has no legal connection to marriage and used it as an excuse to impose their own beliefs on the rest of us,” he said.

Climenko Professor of Law Charles J. Ogletree, who signed the friend-of-the-court brief authored by Tribe, said yesterday’s decree from the high court represented an essential step in the gay rights movement.

“It reaffirms the principle that our Constitution protects the rights of all citizens and that discrimination is intolerable,” Ogletree said.

—Staff Writer Zachary M. Seward can be reached at seward@fas.harvard.edu.

A LANDMARK RULING

NOV. 18, 2003: The Massachusetts Supreme Judicial Court (SJC) rules that limiting marriage to heterosexual couples is unconstitutional and gives the state legislature 180 days to take action.

NOV. 24, 2003: The Cambridge City Council instructs the city clerk to be ready to issue marriage licenses to same-sex couples “as soon as legally possible.”

FEB. 4, 2004: The SJC clarifies its earlier ruling, rejecting a proposed civil unions bill in the state Senate and paving the way for gay marriage in the state.

MAY 17, 2004: Massachusetts is slated to begin issuing marriage licenses to same-sex couples.