New York Times

February 4, 2004
Gays Have Full Marriage Rights, Massachusetts Court Says
By TERENCE NEILAN

he highest court in Massachusetts declared in an opinion issued today that only full marriage rights for gay couples — not just civil unions — would comply with the state's constitution, clearing the way for same-sex marriages to begin taking place by mid-May.

It would make Massachusetts the first state in the United States to uphold same-sex marriages.

The court's ruling was issued in response to a state Senate question about whether civil unions of the kind permitted in Vermont would meet the requirements of a 4-3 decision by the Massachusetts court last November that gay couples had the right to marry.

Legislators had found the wording of the November ruling vague, but there was no room for doubt about today's decision.

Asked if Vermont-style civil unions would be sufficient, the opinion stated: "The answer is `No.' "

Referring to legislation being considered by the state Senate, Chief Justice Margaret H. Marshall and three other judges of the state's Supreme Judicial Court said, "The bill's absolute prohibition of the word `marriage' by `spouses' who are the same sex is more than semantic.

"The dissimilitude between the terms `civil marriage' and `civil union' 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 opinion added: "For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that stain."

It also said: "Barred access to the protections, benefits and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions."

Today's decision cannot be overturned by the Massachusetts Legislature. But the Democrats and Republican lawmakers will hold a constitutional meeting next Wednesday to consider an amendment that would legally define marriage as a union between one man and one woman.

Such a decision would have to be put to two successive votes in the Legislature and would be subject to a statewide referendum, however, a process that could take at least three years.

"We've heard from the court, but not from the people," Gov. Mitt Romney of Massachusetts said in a statement today. "The people of Massachusetts should not be excluded from a decision as fundamental to our society as the definition of marriage."

The decision was welcomed by the director of the Gay and Lesbian Rights Project of the A.C.L.U., Matt Coles.

He said the court had gone "to the heart of the matter." The only reason for talking about gay couples in "unions" and straight people in "marriages," was "to make a statement that gay couple are less worthy," he said.

He added, "That bedrock principle of equality that the country is founded on just cannot let a state do that."

The court's ruling, which runs counter to Bush administration positions, seems certain to become a political issue in this election year. Last November's decision was immediately denounced by the president.

Because it is based in state law, however, the ruling cannot be appealed to the United States Supreme Court, a fact that today's opinion made a point of noting.

"That there may remain personal residual prejudice against same-sex couples is a proposition all too familiar to other disadvantaged groups," the ruling said. "That such prejudice exists in not a reason to insist on less than the constitution requires."

Today's Massachusetts ruling follows a very different decision in Ohio, where the Republican-controlled Legislature gave final approval on Tuesday to one of the most sweeping bans on same-sex unions in the country.

The Ohio measure, which also would bar state agencies from giving benefits to both gay and heterosexual domestic partners, would make Ohio the 38th state to prohibit the recognition of same-sex unions.

Outside the United States, Canada, Belgium and the Netherlands have expanded their marriage laws to include same-sex couples.

Vermont recognizes civil unions, which grant many of but not all the legal rights of marriage. California, Hawaii, New Jersey and more than 60 local governments have passed laws granting various rights to unmarried same-sex couples.